Citation Nr: 22010593 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 17-41 263 DATE: February 24, 2022 REMANDED Entitlement to an increased evaluation in excess of 40 percent for intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD) is remanded. Entitlement to an increased evaluation in excess of 40 percent for lumbar radiculopathy of the left lower extremity is remanded. Entitlement to an increased evaluation in excess of 40 percent for lumbar radiculopathy of the right lower extremity is remanded. Entitlement to a total disability evaluation based on total disability for individual unemployability (TDIU) prior to March 11, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1987 to January 1991, October 2000, October 2001 to November 2001, November 2002 to December 2002, February 2003 to August 2003, and March 2006 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which decreased the assigned rating for the service-connected lumbar spine disability to 20 percent from June 24, 2014. The Veteran filed a notice of disagreement (NOD) in September 2014 and a statement of the case (SOC) was issued in June 2017. He perfected a timely appeal in July 2017. In a January 2020 decision, the Board restored the Veteran's 40 percent disability rating for his service connected lumbar spine disability, effective June 24, 2014, and remanded the claim of entitlement to an increased rating for readjudication. The Board also remanded the Veteran's raised claim for TDIU as it was inextricably intertwined with the increased rating claim on appeal. In a July 2020 supplemental statement of the case (SSOC), the RO denied the Veteran's service connected lumbar spine disability and TDIU claims. The Veteran submitted an October 2021 informal hearing presentation requesting an increased evaluation in excess of 40 percent for his service connected lumbar spine disability. The Veteran also asserts that he is entitled to a TDIU prior to March 11, 2020. The Board notes that the Veteran has a combined total evaluation for his service connected disabilities from March 11, 2020. The Board notes that during the pendency of the Veteran's IVDS and DDD appeal, in a November 2020 rating decision, the RO assigned an increased evaluation of 40 percent effective March 11, 2020 for the Veteran's lumbar radiculopathy of the right and left lower extremities. In this decision, the Board observes a recent precedential decision of the United States Court of Appeals for Veterans Claims (Court) holding that an increased rating claim for spine disability in certain circumstances may entail an implied claim for an increased rating for radiculopathy, which the claimant has not specifically raised in his notice of disagreement. Chavis v. McDonough, 34 Vet. App. 1 (2021). 1. Entitlement to an increased evaluation in excess of 40 percent for IVDS with DDD is remanded. Review of the record reveals the Veteran is currently assigned a 40 percent evaluation for IVDS and DDD of the lumbar spine. As indicated in an October 2021 informal hearing presentation, the Veteran request an increased evaluation in excess of 40 percent for his service connected IVDS with DDD. The Veteran also requested that his outstanding VA and private treatment records be associated with the record. The Board notes, in a June 2018 letter, Dr. P.M. reported that the Veteran underwent a minimally invasive laminectomy and foraminotomy of the lumbar spine on May 17, 2018. Dr. P.M. indicated that the Veteran was to be released from his care in June 2018 to return to work with no restrictions. However, the Veteran's treatment records from Dr. P.M. are not of record. Similarly, the Veteran's May 2018 surgical records from St. Louis University Hospital are also not contained in the claims file. See VA treatment record dated in July 2018 (indicating that the Veteran's May 2018 back surgery was performed at St. Louis University Hospital). As these private treatment records are pertinent to the pending appeal, the Board finds that this matter must be remanded in order for the outstanding records to be obtained and associated with the Veteran's claims file. Furthermore, since the July 2020 SSOC, new evidence has been added to the claims file. This evidence includes VA examinations and outpatient treatment records related to the Veteran's disorder. No waiver by the Veteran or service organization has been submitted. Evidence associated with the file after the appeal that is certified to the Board that was not submitted by the claimant is governed by 38 C.F.R. § 20.1305(c). This regulation states that any "pertinent" evidence must be referred to the AOJ unless the appellant waives the right to have the AOJ consider this evidence in the first instance, or the benefit being sought may be granted in full. As such, the Veteran should be provided an opportunity to report for a VA back examination to ascertain the current severity and manifestations of his lumbar spine disability. Further, to assure a complete file for review any pertinent outstanding medical records should be sought and associated with the record. 2. Entitlement to an increased evaluation in excess of 40 percent for lumbar radiculopathy of the left lower extremity is remanded. 3. Entitlement to an increased evaluation in excess of 40 percent for lumbar radiculopathy of the right lower extremity is remanded. As indicated above, in an increased rating claim for spine disability in certain circumstances may entail an implied claim for an increased rating for radiculopathy. See Chavis. In a March 2020 rating decision, the RO assigned an increased evaluation of 40 percent effective March 11, 2020 for the Veteran's lumbar radiculopathy of the right and left lower extremities. As indicated in Chavis, the Board has jurisdiction to address the ratings for associated radiculopathy without requiring a separate notice of disagreement (NOD) as to the radiculopathy ratings. As such, the Veteran should be provided an opportunity to report for a VA lumbar radiculopathy examination to ascertain the current severity and manifestations of his radiculopathy disability. Further, to assure a complete file for review any pertinent outstanding medical records should be sought. 4. Entitlement to a total disability evaluation based on individual unemployability prior to March 11, 2020 is remanded. As indicated in the Veteran's October 2021 informal hearing presentation, the Veteran contends that hs is unable to maintain substantially gainful employment. The Board also finds that further development is necessary before the Veteran's claim of TDIU can be adjudicated as the Veteran's TDIU claim is inextricably intertwined with his increased rating claims above on appeal. The disposition of the Veteran's appeals may potentially affect his claim for entitlement to TDIU. All issues inextricably intertwined with an issue certified for appeal are to be identified and developed prior to final appellate review of the TDIU issue. Harris v. Derwinski, 1 Vet. App. 180 (1991). In May 2020, the RO sent the Veteran a VA Form 21-8940 which provides detailed employment history information. As of this date, the RO has not received a completed form from the Veteran. On remand, another attempt should be made by the RO to issue another VA Form 21-8940. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA and private evaluation and/or treatment of the Veteran including the surgical and post-surgical treatment records pertaining to the Veteran's May 2018 lumbar spine surgery from St. Louis University Hospital and Dr. P.M., referenced above. Follow the procedures set forth in 38C.F.R. §3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. After the foregoing development has been completed to the extent possible, schedule the Veteran for any pertinent examinations for his remanded disabilities. The examiner should review the record. All indicated tests should be conducted and the results reported. After a thorough review of the medical history the examiner is requested to prepare a detailed opinion for the following: For the lumbar spine examiner: Discuss all symptoms and manifestations associated with the Veteran's DDD, IVDS, and radiculopathy of the lumbar spine disorders and set out functional and occupational impairments. All clinical findings should be set out in detail. For the TDIU claim, please note the functional impact of the disabilities. 3. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain employment information. Then take any necessary development for the TDIU claim. Please provide a complete rationale for all opinions entered. If an examiner cannot provide any of the requested opinions, he/she must affirm that all procurable and assembled data was fully considered, and a detailed rationale must be provided for why an opinion cannot be rendered. 4. 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 a TDIU. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elliot Harris 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.