Citation Nr: 21029826 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-14 395 DATE: May 17, 2021 REMANDED A disability rating in excess of 10 percent prior to January 23, 2017 for a low back disability is remanded. A disability rating in excess of 20 percent from January 13, 2017 for a low back disability is remanded. A disability rating in excess of 10 percent for prior to December 26, 2017 for radiculopathy of the right lower extremity is remanded. A disability rating in excess of 20 percent for from to December 26, 2017 for radiculopathy of the right lower extremity is remanded. A disability rating in excess of 10 percent for prior to December 26, 2017 for radiculopathy of the left lower extremity is remanded. A disability rating in excess of 20 percent for from to December 26, 2017 for radiculopathy of the left lower extremity is remanded. A total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Marine Corps from October 1960 to October 1964. Unfortunately, the Veteran passed away in August 2020, and the Veteran's surviving spouse was substituted as the Appellant in this appeal. These matters come to the Board of Veterans' Appeals (Board) on appeal from June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. In the substantive appeal perfecting these matters to the Board, the Veteran, prior to his passing, had previously indicated that he did not desire a personal hearing before the Board. The Appellant has not requested a hearing in this matter. These matters were previously adjudicated by the Board in January 2020, with the exception of TDIU which was remanded for further development. In November 2020, the Court of Appeals for Veterans Claims (Court) vacated the Board's disposition and remanded the matters back to the Board for further consideration. 1. A disability rating in excess of 10 percent prior to January 23, 2017 for a low back disability is remanded. 2. A disability rating in excess of 20 percent from January 13, 2017 for a low back disability is remanded. At issue is whether the Veteran should have been assigned increased disability ratings for the Veteran's back disability. As previously noted, the Court, in November 2020, vacated the Board's previous disposition of the Veteran's increased rating claims and remanded the matter back to the Board for further consideration. Specifically, the Court found that the examinations that the Board relied on were inadequate. Therefore, this matter must be remanded for a VA medical opinion addressing the Court's concerns based on the evidence of record in order to ensure substantial compliance with the Court's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 3. A disability rating in excess of 10 percent for prior to December 26, 2017 for radiculopathy of the right lower extremity is remanded. 4. A disability rating in excess of 20 percent for from to December 26, 2017 for radiculopathy of the right lower extremity is remanded. 5. A disability rating in excess of 10 percent for prior to December 26, 2017 for radiculopathy of the left lower extremity is remanded. 6. A disability rating in excess of 20 percent for from to December 26, 2017 for radiculopathy of the left lower extremity is remanded. 7. TDIU is remanded. The Veteran's increased rating claims for radiculopathy of the bilateral lower extremities and claim for TDIU is inextricably intertwined with the Veteran's increased rating claim for a back disability, and they must be remanded as well in order to avoid piecemeal appellate litigation. Harris v. Derwinski, 1 Vet. App. 180 (1991) The matters are REMANDED for the following action: 1. Arrange to provide a medical opinion from a VA examiner in order to address the following: (a.) Before addressing these matters, please review the Veteran's examinations of record, all pertinent treatment records and lay reports, and the Joint Motion for Partial Remand (available in VBMS: Receipt Date: 12/14/2020; Document Type: CAVC Decision; Subject: CAVC-Litigation Materials; System Source: VBMS-UI). (b.) Based on all pertinent evidence of record please estimate the Veteran's functional impairment with repeated use as well as during flare-ups. Please explain why. (c.) Based on the evidence of record identify at what point the Veteran began to manifest pain upon range of motion. Please explain why. (d.) Please address the medical significance, if any, of any pertinent medical evidence indicated that the Veteran manifested a diagnosis of scoliosis or kyphosis. Please explain why. (e.) Please address the medical significance, if any, of any pertinent medical evidence indicating that the Veteran manifested ankylosis of the spine. (f.) Please estimate the severity of the Veteran's bilateral lower extremity radiculopathy throughout the rating period on appeal (e. g., mild, moderate, severe). Please explain why. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Seaton 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.