Citation Nr: 21032564 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-21 011 DATE: May 27, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a back disability prior to May 15, 2018 and in excess of 40 percent from that date is remanded. Entitlement to a compensable rating for right lower extremity radiculopathy prior to May 15, 2018 and in excess of 10 percent from that date is remanded. Entitlement to a compensable rating for left lower extremity radiculopathy prior to May 15, 2018 and in excess of 10 percent from that date is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1980 and February 1983. In June 2020, the Veteran testified at a videoconference before the undersigned Veterans Law Judge. A transcript of that hearing is of record The Veteran perfected an appeal from a February 2016 rating decision that granted service connection and assigned initial ratings for the back disability (from September 13, 2007) and PTSD (from January 12, 2012). In an interim May 2018 rating decision, service-connection was granted and separate 10 percent ratings assigned for right and left lower extremity radiculopathy, effective May 15, 2018, the date of a VA examination. The Board has jurisdiction over the claims for higher ratings for his bilateral radiculopathy as part of his claim for an increased rating for a back disability. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine, Note (1) (2017). The Veteran filed an application for TDIU in March 2020, specifically citing his service-connected PTSD and back disability as those that impacted his employability. That claim is before the Board as part of the increased rating claims addressed here. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has representation specifically limited to the issues regarding PTSD. The Board will address his claims for an earlier effective date for the grant of service connection for and a higher rating for PTSD in a separate decision. The TDIU claim is intertwined with both his PTSD and back disabilities the Board will address entitlement to TDIU in both decisions. Entitlement to an initial rating in excess of 10 percent for a back disability prior to May 15, 2018 and in excess of 40 percent from that date is remanded. Entitlement to a compensable rating for right lower extremity radiculopathy prior to May 15, 2018 and in excess of 10 percent from that date is remanded. Entitlement to a compensable rating for left lower extremity radiculopathy prior to May 15, 2018 and in excess of 10 percent from that date is remanded. The claim must be remanded for an adequate examination. the July 2020 VA examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner noted that the Veteran had pain on all range of motion that caused functional loss, but did not indicate where pain begins and ends. The claims for higher ratings for the lower extremity radiculopathies must be remanded as intertwined with the back claim. Additionally, while the Veteran testified in June 2020 of having symptoms of radiculopathy, the July 2020 VA back examiner specifically found the Veteran did not have radicular pain or any signs or symptoms due to radiculopathy. The examination on remand must address all neurological manifestations. Entitlement to TDIU is remanded. A remand is required as the TDIU claim is intertwined with the back claim. In his March 2020 VA Form 21-8940, Application for TDIU, the Veteran indicated he was currently employed. However, at the June 2020 videoconference hearing the Veteran testified that he was no longer employed. On remand, the Veteran should be asked to submit an updated VA Form 21-8940, Application for TDIU. Correspondence in the record (including April 2021 and May 2021 letters) shows the Veteran has applied for Vocational Rehabilitation benefits during the course of the appeal. On remand, Vocational Rehabilitation records should be obtained as they may contain evidence relevant to the increased rating claim on appeal. Finally, on remand, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any back or neurological complaints since December 2012 not already associated with the record. After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment since November 2019. 2. Take all appropriate action to obtain any existing VA vocational rehabilitation records or folder. 3. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit an updated completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim. 4. After the completion of the above, schedule the Veteran for an examination of the current severity of his service-connected back disability and radiculopathy of the bilateral lower extremities. Copies of all pertinent records must be made available to the examiner for review. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups throughout the entire period on appeal. To the extent possible, the examiner should identify any symptoms and functional impairments due to his back disability alone and discuss the effect of the Veteran's back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The severity of all neurological manifestations must be identified. The examiner should identify if the functional limitation of the Veteran's back disability and associated neurological manifestations combined more nearly approximates ankylosis at any point during the period on appeal 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. [Please note that the issue of entitlement to TDIU is also addressed in a separate Board decision as also inextricably intertwined with a claim for a higher rating for PTSD. If the development regarding TDIU has been completed in connection with that decision, there is no need to undertake the development again] M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.