Citation Nr: 21029170 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-39 107 DATE: May 12, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for right upper extremity radiculopathy is remanded. Entitlement to an evaluation in excess of 20 percent for left upper extremity radiculopathy is remanded. Entitlement to an evaluation in excess of 10 percent for cervical spine disability, including degenerative disc disease, is remanded. Entitlement to a finding of total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from August 1974 to August 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a March 2021 virtual hearing held before the undersigned Veterans Law Judge (VLJ) via videoconference. A transcript of the hearing is associated with the electronic claims file. At the hearing, it was noted that the issue of increased evaluation for the thoracolumbar spine is not currently on appeal before the Board. Although this matter was addressed in the rating decision on appeal and in the corresponding statement of the case (SOC), it was not actually appealed in the notice of disagreement (NOD). As such, it will not be discussed. During the Board hearing, the Veteran indicated that he was unable to work due to his neck pain and radiculopathy. A claim of entitlement to a total rating based on individual unemployability (TDIU) is inferred under Rice v. Shinseki, 22 Vet. App. 447 (2009) as part and parcel of his increased rating claims. The Veteran and his attorney requested that the record be left open for 30 days to submit additional private medical records and a VA Form 21-8940. It is now more than 30 days after the March 18, 2021 hearing, and no additional medical evidence or requests to keep the record open longer have been received. However, as additional relevant, private records have been identified, VA is required to assist a claimant by taking all reasonable actions in obtaining medical records that are necessary to decide a claim. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. As such, efforts should be taken to obtain these records. Additionally, the Veteran's VA treatment records do not appear to have been updated since 2016. Although he reported during the hearing that he normally visits private providers, he did note that he will see the VA when he has a "real issue, like a flare-up that won't go away." Accordingly, it appears that the Veteran has continued to receive treatment from the VA, and updated records should be obtained. The Veteran was last provided a VA examination for his cervical spine disability and radiculopathies in June 2016. This examination report shows that the Veteran experienced flare-ups three or four times a year, with each flare-up lasting three or four days at a time. During flare-ups, he experienced a pulling, burning pain in both of his upper arms from his shoulders to his elbows. His radicular pain was described as "mild." During the hearing, the Veteran indicated that his symptoms have worsened. He described his flare-ups as at times debilitating and reported that they now occur every two to three months. He indicated that his radicular symptoms have also worsened and are aptly described as "moderate." Given the evidence of worsening symptoms, the Board finds that a new VA examination for his cervical spine disability and left and right radiculopathies is required. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board defers decision on TDIU as intertwined with the remanded claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together than a final Board decision cannot be rendered unless both issues have been considered.) Furthermore, as noted above, the Veteran reported at the hearing that he intended to submit a VA Form 21-8940. Such has not yet been submitted. A formal application for TDIU, on a VA Form 21-8940, should be requested to ensure that all factors for consideration in such a claim have been addressed. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Contact the Veteran and request properly executed releases for any private care providers who have treated him for any claimed conditions. Releases for Dr. K and Dr. ML should be specifically requested. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 3. Contact the Veteran and request a properly executed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 4. Thereafter, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected cervical spine disability and left and right radiculopathies. The claims file must be made available for review by the examiner. The examiner must identify all manifestations and symptoms of the cervical spine disability and left and right radiculopathies. The VA examiner should address any additional functional impairment or loss during repeated use or flare-ups. If the examiner cannot report the degree of additional range of motion loss during a flare-up or repeated use, the VA examiner must explain why it is not feasible to render such an opinion. The examiner must comment on the impact of the cervical spine and left and right radiculopathies on the Veteran's ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, etc.). 5. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issues to include TDIU. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.