Citation Nr: 21028207 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 12-28 342 DATE: May 10, 2021 REMANDED A rating higher than 20 percent from December 9, 2008, for degenerative disc disease of the lumbar spine is remanded. A rating higher than 10 percent for right lower extremity sciatica prior to September 1, 2010, in excess of 20 percent from September 1, 2010, through August 2, 2012, and in excess of 40 percent after August 3, 2012, is remanded. A total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1974 to February 1978 and from November 1990 to May 1991, with additional service in the Army Reserves. These matters have a procedural history which includes prior Board remands and an April 2017 Memorandum Decision by the United States Court of Veterans Claims (Court) which vacated part of a May 2015 Board decision. The Court modified the May 2015 Board Decision to reflect that the matter of a higher disability rating for right lower extremity sciatica from August 3, 2012 is remanded and set aside the remainder of the Board's May 2015 decision. Lumbar Spine Right Lower Extremity Sciatica While the Board regrets continued delay, there was not substantial compliance with the directives contained in the Board's June 2020 remand. Specifically, the examiner did not find that the Veteran had any range of motion loss during his examination, however, the Veteran has specifically stated on numerous occasions that he suffers from flare-ups and functional loss, including most recently in his March 2021 Informal Hearing Presentation (IHP). Furthermore, an examination regarding the severity of the Veteran's right lower extremity sciatica was not conducted. TDIU The Board also finds that the claim of entitlement to TDIU is inextricably intertwined with the remands of increased ratings for the Veteran's lumbar spine and right lower extremity sciatica. Harris v. Derwinski, 1 Vet. App. 180 (1991). The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes that information regarding the Veteran's employment and income was requested from the Veteran in June 2020, yet no response from the Veteran is contained in the claims file. The Veteran is reminded that the duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims. The matters are REMANDED for the following action: 1. Request that the Veteran provide a detailed current accounting of his work history, from the period he claims unemployability to the present, including by completing and returning VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The RO must also inform the Veteran the necessary requirements for a TDIU based on self-employment. 2. Ask the Veteran to provide IRS tax returns for the years he claims unemployment and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above.4.The RO must confirm the Veteran's current mailing address and telephone number. The Veteran should be informed of his scheduled examinations by all available avenues, including by telephone and/or letter. The RO is asked to document and include in the record all efforts taken to accomplish the scheduling of the examinations. 3. Schedule the Veteran for an examination, preferably by a physician who has not examined him before, to determine the current severity of his service-connected lumbar spine and right lower extremity sciatica disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also identify and discuss the nature and extent of the right lower extremity sciatica. The examiner should opine, to the extent possible, as to whether such results in complete paralysis or "mild," "moderate," "moderately severe," or "severe" incomplete paralysis. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran's lumbar spine disability and right lower extremity sciatica on his daily activities and employability. All opinions expressed should be accompanied by supporting rationale. (Continued on the next page) 4. Thereafter, after the above directives have been completed and appropriate action has been taken on the remanded claims readjudicate the claim of entitlement to a TDIU considering all pertinent evidence and legal authority. In doing so, the RO shall determine whether referral of the case to the Under Secretary for Benefits of the Director, Compensation and Pension Service, for consideration of assignment of a extraschedular rating for the low back disability and right lower extremity sciatica under the provisions of 38 C.F.R. § 3.321(b) is warranted, with specific consideration of the sequential analysis noted in Thun v. Peake, 22 Vet. App. 111 (2008). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, Counsel 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.