Citation Nr: 21025252 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 19-19 108 DATE: April 27, 2021 REMANDED Entitlement to an effective date earlier than August 21, 2018, including based on clear and unmistakable error (CUE), for service connection of left lower extremity sciatic nerve radiculopathy is remanded. Entitlement to an effective date earlier than August 21, 2018, including based on CUE, for service connection of right lower extremity sciatic nerve radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a total disability due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1978 to July 1988 and from February 1992 to November 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2021. Earlier Effective Date At her March 2021 Board hearing, the Veteran detailed that there was CUE in the assignment of the effective date for service connection of her bilateral lower extremity radiculopathy. See also February 2019 statement in support of claim; January 2019 NOD. More specifically, she contends that there is CUE in earlier decisions that do not provide service connection for bilateral lower extremity radiculopathy. In her June 2019 Form 9, she specifically highlights that there was CUE in the May 1999 and October 2013 rating decision because they failed to assign radiculopathy ratings. She highlights that the original rating for her lower extremities in 1999 failed to consider a rating for her leg pain, diagnosed as radiculopathy. Although the RO highlights the Veteran’s contentions regarding entitlement to an effective date in 1999, the RO has not addressed the specific CUE assertions. As such, remand is warranted for the RO to address the Veteran’s CUE claim in the first instance. IR radiculopathy (Bilateral Lower Extremity) The Veteran filed a timely notice of disagreement as to the rating assigned for her left and right lower extremity radiculopathy. See January and March 2019 NOD. The RO has not yet issued a statement of the case (SOC) for these issues. As a result, remand is warranted. See Manlincon v. West, 12 Vet. App. 238 (1999) (Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case). TDIU The Veteran asserts that she is unable to obtain and maintain employment as a result of her service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also March 2021 Hr’g Tr. She reports that her work in the medical field became increasingly difficult due to her service-connected disabilities. In order to adequately consider the Veteran’s claim of entitlement to a TDIU, additional information is necessary. As a result, remand is warranted for further development, including for the Veteran to have an opportunity to submit a VA Form 21-8940. Additionally, in order to properly consider the TDIU claim, the Board notes that the Veteran contends that her leg symptoms has worsened since her last VA examination. As a result, remand is also warranted for a new VA examination to determine the current nature and severity of her disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition, in Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court held, “VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code.” Morgan, 31 Vet. App. at 167; see also Long v. Wilkie, 33 Vet. App. 167 (2020) (en banc); Bailey v. Wilkie, 33 Vet. App. 188 (2021). Pursuant to Morgan, Long and Bailey, the Board finds that it is essential to rate, on a schedular basis, all of the manifestations of the Veteran’s service-connected right lower extremity and left lower extremity impairment. Here, at the March 2021 Board hearing, the Veteran testified to having psychiatric symptoms, including anger issues, as a consequence of her lower extremity impairment. Thus, on remand, the Veteran should be afforded a VA psychiatric examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Adjudicate the Veteran’s claims for entitlement to an earlier effective date for service connection of bilateral lower extremity radiculopathy, based on clear and unmistakable error (CUE). 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of the Veteran’s left and right lower extremity radiculopathy. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) with an appropriate medical professional to determine whether Veteran has an acquired psychiatric disorder, and if so, whether such is a manifestation of the Veteran’s service-connected right lower extremity and left lower extremity impairment. A diagnosis of an acquired psychiatric disorder must be ruled in or excluded. If no acquired psychiatric disorder is diagnosed or identified, the examiner should explain the rationale for such a finding. 5. Furnish the Veteran a VA Form 21-8940 and request that he complete and submit it in conjunction with the TDIU claim. 6. Issue a statement of the case (SOC) as to all the issues on appeal, including entitlement to an increased rating for left and right lower extremity radiculopathy. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ijitimehin, Kemi D. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.