Citation Nr: 21040352 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-58 182 DATE: July 3, 2021 ORDER Entitlement to a 40 percent disability rating, but no higher, for service-connected chronic lumbosacral pain with degenerative changes is granted. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity prior to February 9, 2016, is denied. Entitlement to a 40 percent disability rating, but no higher, for radiculopathy of the left lower extremity from February 9, 2016, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the evidence is at least evenly balanced as whether the symptoms of the Veteran's chronic lumbosacral pain with degenerative changes more nearly approximated forward flexion to 30 degrees or less; the Veteran's low back disability did not result in spinal ankylosis or the functional equivalent of spinal ankylosis, and he did not experience incapacitating episodes due to intervertebral disc syndrome (IVDS) having a total duration of at least 6 weeks during a 12-month period. 2. For the appeal period prior to February 9, 2016, the Veteran's left lower extremity radiculopathy has not been shown to be more than a moderate degree of severity. 3. For the appeal period from February 9, 2016, the Veteran's left lower extremity radiculopathy more nearly approximates a moderately severe degree; his symptoms did not more nearly approximate severe with marked muscular atrophy. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 40 percent disability rating, but no higher, for service-connected chronic lumbosacral pain with degenerative changes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for entitlement to a disability rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity prior to February 9, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520. 3. The criteria for entitlement to a 40 percent disability rating, but no higher, for service-connected radiculopathy of the left lower extremity from February 9, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to August 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a February 2020 Board hearing before the underlying Acting Veterans Law Judge (AVLJ). However, a hearing transcript is not available due to an audio malfunction in the recording of the hearing. In December 2020 and May 2021, the Board notified the Veteran that it was unable to produce a hearing transcript because of audio malfunctions; and the Board offered him an opportunity to have another hearing if the Veteran responded within 30 days. As the Veteran did not respond to either letter within the 30-day timeframe, the Board has assumed that he does not desire another hearing and will proceed with the adjudication of the claims. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled date, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Entitlement to disability rating in excess of 20 percent for service-connected chronic lumbosacral pain with degenerative changes. The Veteran seeks a higher rating for his service-connected chronic lumbosacral pain with degenerative changes. See October 2014 VA Form 21-526. The Veteran's increased rating claim was received on October 6, 2014. Therefore, the relevant rating period is from October 6, 2013, one year prior to receipt of the claim, through the present. 38 C.F.R. § 3.400(o)(2). The Veteran's chronic lumbosacral strain is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, DC 5237. The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Limitation of motion of the thoracolumbar spine is rated under the Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula both prior to and since the regulatory change, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees or for muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, DCs 5235, 5237. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id. Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees and extension and left and right lateral flexion and rotation of the thoracolumbar spine are all zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. The rating criteria provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Court has held that a veteran may be entitled to a rating higher than 40 percent under the General Rating Formula if the veteran experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021). Under DC 5243 both prior to and since the regulatory change, IVDS (preoperatively or postoperatively) is rated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71A, DC 5243. Under the criteria for rating IVDS, the following ratings apply: a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71A, DC 5243. For purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell, 25 Vet. App. at 33, 43. Even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25, Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint, therefore the holding in Correia is not applicable in that respect. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Turning to the evidence, VA treatment and private treatment records demonstrate the Veteran's complaints of chronic lower back pain and frequent flare ups. See generally, VA treatment records; May 2016, January 2018, and October 2018 private treatment records. The Veteran was afforded a VA examination in May 2014. The Veteran reported flare ups that require him to stay in bed that usually lasts a day and happens a couple of times a month; and denied any additional loss of range of motion during flare ups. See May 2014 VA examination. The VA examiner noted the Veteran demonstrated an initial range of motion of forward flexion to 65 degrees; extension to 25 degrees; right lateral flexion to 30 degrees; left lateral flexion to 25 degrees; right lateral rotation to 30 degrees; left lateral rotation to 30 degrees. Id. There was no additional loss of motion following repetitive use testing. Id. The VA examiner noted less movement than normal, incoordination, pain on movement, and disturbance of locomotion as contributing factors of disability. Id. The VA examiner noted the Veteran had muscle spasms resulting in abnormal gait or abnormal spinal contour. Id. There was no ankylosis, muscle atrophy, or IVDS. Id. The May 2014 VA examination does not support a finding that a higher rating was warranted for the Veteran's low back disability during the one-year prior to the date of the Veteran's claim for an increase. Accordingly, the Board finds there is no factually ascertainable date of increase in the severity of the Veteran's chronic lumbosacral strain during the one-year period prior to the date of claim to serve as a basis for awarding a disability rating in excess of 20 percent. In November 2014, the Veteran underwent a VA examination. The Veteran reported he experiences sharp pains of his lower back during the days and night; occasional awakening at night; daily worsening if standing for more than 10 to 15 minutes; must sit down after walking 2 blocks; and pain with steps up and down. See November 2014 VA examination. The VA examiner noted the Veteran used a cane continuously and received steroid injections in January and April 2014. Id. The VA examiner noted the Veteran demonstrated an initial range of motion of forward flexion to 70 degrees; extension to 20 degrees; right lateral flexion to 25 degrees; left lateral flexion to 20 degrees; right lateral rotation to 30 degrees; left lateral rotation to 25 degrees. Id. There was no additional loss of function or range of motion following repetitive use testing. Id. The VA examiner noted less movement than normal, incoordination, pain on movement, disturbance of locomotion, lack of endurance, and interference with sitting, standing, and/or weight-bearing contributed to the disability. Id. There was no ankylosis or muscle spasms. Id. The VA examiner noted the Veteran had guarding that did not result in abnormal gait or spinal contour. Id. Despite the Veteran's reports of worsening pain during the day and night, the VA examiner noted the Veteran did not report any flare ups and concluded it was not possible to state without resorting to speculation whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups or to specify degrees of range of motion loss. Id. Additionally, the VA examiner noted that with further repetitive use over a period of time, the Veteran's spine function may or may not develop additional limitation due to pain, weakness, fatigability, or incoordination. Id. The Veteran was most recently afforded a VA examination in February 2016. The Veteran reported an increase in pain since the previous November 2014 VA examination. See February 2016 VA examination. The Veteran reported flare ups that will sometimes be a lot worse than others; hurts when walking and cannot walk far at all; cannot lift at all anymore; and pretty much limits any kind of activity of all. Id. The VA examiner noted the Veteran demonstrated an initial range of motion of forward flexion to 55 degrees; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 30 degrees; right lateral rotation to 20 degrees; left lateral rotation to 30 degrees. Id. The combined range of motion was 175 degrees. Id. The VA examiner noted the Veteran has muscle spasm and guarding resulting in abnormal gait or abnormal spinal contour; additional factors contributing disability included disturbance of locomotion, interference with sitting and standing; reduced muscle strength; and that the Veteran ambulates slowly with a wheeled walker. Id. There was no muscle atrophy or ankylosis noted upon examination. Id. The VA examiner noted the Veteran was unable to perform repetitive use testing due to pain. Id. The VA examiner noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limit functional ability with flare ups and repeated use over time. Id. However, the VA examiner did not provide an estimation of loss of range of motion during periods of flare ups. At the February 2020 Board hearing, the VLJ noted the Veteran testified that he has limitation of motion; an impaired ability to stand for long periods of time; frequent flare ups; and requires the use of a wheelchair. For the following reasons, a 40 percent rating, but no higher, for the Veteran's low back disability is warranted. The Veteran's limitation of motion and functional impairment, his overall chronic lumbosacral strain disability more nearly approximates a 40 percent rating for the entire period since October 6, 2014. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59. Throughout the appeal period, the Veteran reported that he had increased pain during low back flare ups and that he required the use of a wheelchair due to his low back disability. The Board has considered the Veteran's lay statements. The Veteran is competent to report symptoms of his service-connected chronic lumbosacral pain with degenerative changes. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). There has been no VA examiner or treatment provider that has provided additional loss of motion during periods of flare ups of low back symptoms. In this case, the Veteran's statements suggest that his range of motion would be significantly limited due to pain during flare ups. Although the Veteran's low back disability was not limited to 30 degrees or less, he consistently reported low back flare ups, pain, and an impaired ability to stand for long periods of time. In light of the above and considering the frequency and severity of the Veteran's low back pain, flare ups, and the inability for an examiner to estimate the range of motion of the back during a flare up, the evidence is at least evenly balanced as to whether the symptoms of the Veteran's low back disability more nearly approximate forward flexion less than 30 degrees. The evidence of record shows that the Veteran did not have spinal ankylosis. Neither the VA examination reports nor the Veteran's statements indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Despite the limited ranges of spinal motion, the Board finds that even considering back pain, flare ups, and other functional factors, the Veteran did not experience actual ankylosis or the functional equivalent of spinal ankylosis (as defined above) during the appeal period. In other words, a preponderance of the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's back symptoms were not shown to have been so disabling to actually or effectively result in fixation of the entire thoracolumbar spine in flexion or extension with any of the additional symptoms or limitations listed in Note (5) of the General Rating Formula. Additionally, the Veteran did not experienced incapacitating episodes of IVDS having a total duration of at least 6 weeks during any 12-month period at any time during the claim period. Specifically, the May 2014 VA examination noted that the Veteran did not have IVDS. The November 2014, and February 2016 VA examinations demonstrate the Veteran does have IVDS; he did not have any incapacitating episodes. Therefore, a higher rating is not warranted on the basis of IVDS at any time during the appeal period. In sum, a 40 percent rating, but no higher for the Veteran's low back disability is warranted. The benefit-of-the-doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to a disability rating in excess of 20 percent disability for service-connected radiculopathy of the left lower extremity. The Veteran seeks a disability rating in excess of 20 percent for his service-connected radiculopathy of the left lower extremity. See October 2014 VA Form 21-526. In the December 2014 rating decision on appeal, the RO granted the Veteran an increased rating from 10 to 20 percent disabling effective October 6, 2014. The Veteran's left lower extremity radiculopathy is rated pursuant to 38 C.F.R. § 4.124a, DC 8520. Neurological disability is evaluated on the basis of nerve paralysis, partial paralysis, neuritis or neuralgia in proportion to the impairment of motor or sensory function. 38 C.F.R. §§ 4.120-4.124a. Under DC 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. See 38 C.F.R. § 4.124a, DC 8520. Complete paralysis of the sciatic nerve warrants an 80 percent rating. Id. The Board notes that the words "mild," "moderate," and "moderately severe," as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.6. Prior to February 9, 2016 After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the criteria for a rating in excess of 20 percent is warranted under DC 8520. In that regard, the Veteran's VA treatment records show the Veteran had radicular symptoms; however, there is no indication of the level of severity for the Veteran's left lower extremity radiculopathy. See April 2014 VA treatment records. The Veteran was provided VA examinations in May 2014 and November 2014 for his service-connected back disability. In May 2014, the VA examiner noted the Veteran had radicular pain due to radiculopathy. See May 2014 VA examination. The VA examiner noted the Veteran had mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the left lower extremity. Id. The VA examiner noted the severity of the Veteran's left lower extremity radiculopathy as mild. Id. There were no other signs or symptoms of radiculopathy or muscle atrophy noted. Id. In November 2014, the Veteran reported he often had daily spread of pain down his leg, occasional numbness of left toes, and left leg pain with steps. See November 2014 VA examination. The VA examiner noted the Veteran had decreased sensation to light touch in his left foot/toes, normal leg strength, moderate intermittent pain, and mild numbness. Id. The Veteran had hypoactive deep tendon reflexes. Id. The VA examiner noted the severity of the Veteran's left lower extremity as moderate. Id. There was no muscle atrophy noted. Id. The VA examiner noted review of the Veteran's claims folder and conducted an in-person examination. Id. As such, the Board finds the November 2014 VA examination adequate for decision making purposes and affords it significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). To the extent the Veteran contends that his left lower extremity radiculopathy was more severe than reflected by the currently assigned 20 percent for the appeal period prior to February 9, 2016, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person including pain. See Jandreau, 492 F.3d at 1377. However, in view of the relevant evidence of record, the Board concludes that the Veteran is not entitled to a rating in excess of 20 percent for his service-connected left lower extremity radiculopathy. Throughout the appeal period prior to February 9, 2016, objective medical testing results revealed an overall moderate level of severity for the Veteran's left lower extremity radiculopathy. Additionally, the Veteran, nor his representative, provided any evidence to warrant a disability rating in excess of 20 percent prior to February 9, 2016. As such, the disability picture for left lower extremity radiculopathy does not more nearly approximate moderately severe incomplete paralysis, and a 40 percent disability rating, the next higher level, is not warranted prior to February 9, 2016. In sum, the probative evidence of record demonstrates the Veteran's disability picture most nearly approximates the criteria for a 20 percent rating under DC 8520 prior to February 9, 2016. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, 4.7; Gilbert, 1 Vet. App. at 53. From February 9, 2016 After review of the evidence of record, the Board finds that the Veteran is entitled to a 40 percent disability rating for left lower extremity radiculopathy, effective February 9, 2016. The Veteran was most recently afforded a VA examination in February 2016. The Veteran reported that he hurts more since the prior November 2014 VA examination; has constant low back pain that radiates into hips and down both legs; and has intermittent tingling in the foot. See February 2016 VA examination. Upon examination, the Veteran demonstrated reduced strength in the left lower extremity, severe intermittent pain, and severe paresthesias and/or dysesthesias. Id. The Veteran had a normal reflex examination, no muscle atrophy, and there no other signs or symptoms of radiculopathy. Id. The VA examiner noted review of the Veteran's claims folder and conducted an in-person examination. Id. As such, the Board finds the November 2014 VA examination adequate for decision making purposes and affords it significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 302. Resolving any reasonable doubt in the Veteran's favor, the Board finds the Veteran's overall disability picture more nearly approximates incomplete paralysis from February 9, 2016. To the extent the Veteran contends that his left lower extremity radiculopathy was more severe than reflected by the currently awarded 40 percent for the appeal period from February 9, 2016, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person including pain. See Jandreau, 492 F.3d at 1377. However, in view of the relevant evidence, the Board concludes that the Veteran is not entitled to a rating in excess of 40 percent from February 9, 2016. As noted above, a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy under DC 8520. However, the evidence of record does not demonstrate muscle atrophy for any time during the appeal period, and the Board finds that a higher rating is not warranted for left lower extremity radiculopathy. See 38 C.F.R. § 4.1242a, DC 8520. In sum, the probative evidence of record demonstrates the Veteran's disability picture most nearly approximates the criteria for a 40 percent rating under DC 8520 from February 9, 2016. To the extent the Veteran seeks a higher disability rating, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, 4.7; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Although the RO previously denied entitlement to a TDIU in a May 2014 rating decision, the issue of a TDIU has been raised during the increased ratings on appeal. The RO has not had the opportunity to adjudicate entitlement to a TDIU with consideration of the Board's grant of the increased ratings awarded above. Bernard v. Brown, 4 Vet. App. 384 (1993) (when the Board addresses in a decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby). The matters are REMANDED for the following action: (Continued on the next page) Following completion of any appropriate development, readjudicate the issue of entitlement to a TDIU, after implementing the Board's awards of a 40 percent disability rating for chronic lumbosacral strain, effective October 6, 2014, and a 40 percent disability rating for left lower extremity radiculopathy, effective February 9, 2016. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. P. Moore, Associate 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.