Citation Nr: 22011089 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 10-16 535 DATE: February 25, 2022 REMANDED Entitlement to a rating in excess of 40 percent prior to June 1, 2015, and to a rating in excess of 60 percent beginning June 1, 2015, for a spine disability is remanded. Entitlement to a rating in excess of 10 percent prior to December 11, 2014, and to a rating in excess of 20 percent beginning December 11, 2014, for right lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to July 6, 2011 is remanded. REASONS FOR REMAND The Veteran had active naval service from January 1992 to October 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and June 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The December 2008 rating decision reduced the rating assigned for the Veteran's low back disability from 40 percent to 20 percent, effective March 1, 2009; and a June 2009 rating decision that reduced the evaluation for radiculopathy of the right lower extremity from 10 percent to noncompensable, effective from September 1, 2009. A February 2014 Board decision found that the reductions were improper, and restored a rating of 40 percent for degenerative disc disease of the thoracolumbar spine and 10 percent for radiculopathy of the right lower extremity. The decision went on to remand the issues of entitlement to higher disability ratings for the disabilities. A July 2015 rating decision increased the evaluation for radiculopathy of the right lower extremity to 20 percent effective December 11, 2014. A March 2016 rating decision granted TDIU effective September 29, 2015. The issues of entitlement to a higher rating for degenerative disc disease of the thoracolumbar spine and radiculopathy of the right lower extremity were remanded again in May 2016. A July 2016 rating decision re-characterized the Veteran's spine condition as Intervertebral Disc Syndrome (IVDS) with degenerative disc disease of the thoracolumbar spine, and raised the evaluation to 60 percent effective June 1, 2015. In a November 2019 rating decision, the RO again recharacterized the Veteran's spine condition as IVDS with degenerative disc disease of the thoracolumbar spine with left and right lower extremity radiculopathy, and continued the Veteran's 60 percent evaluation. The RO also granted entitlement to a TDIU, effective from July 6, 2011 to March 2, 2018. The Board most recently remanded the case for further development in January 2018. The case has since been returned to the Board for appellate review In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2021. A transcript of that hearing has been associated with the claims file. 1. Spine and right lower extremity The Veteran was most recently afforded an examination for her spine disability and right lower extremity radiculopathy in November 2019. At her November 2021 hearing, the Veteran reported that her back disability and her right lower extremity radiculopathy had worsened since her most recent VA examinations. As the above evidence indicates a possible worsening of that the Veteran's spine disability and radiculopathy since her last VA examination, an additional examination should be afforded to gauge the current level of severity of her disabilities. 2. TDIU The Board notes that the Veteran is seeking entitlement to a TDIU prior to July 6, 2011. A review of the record shows that the Veteran does not meet the schedular criteria for assignment of a TDIU prior to July 6, 2011. However, in the decision above, the Board remanded entitlement to an increased rating for a spine disability, and entitlement to an increased rating for right lower extremity radiculopathy. Therefore, TDIU cannot be decided until the other pending claims are decided. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected spine disability with right lower extremity radiculopathy. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. 3. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 4. Then, readjudicate the remaining issues on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Cannaday, 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.