Citation Nr: 22011520 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 18-50 783 DATE: March 1, 2022 REMANDED Entitlement to an initial evaluation in excess of 10 percent disabling for right lower extremity radiculopathy, sciatic nerve, prior to November 12, 2014, is remanded. Entitlement to an initial evaluation in excess of 10 percent disabling for left lower extremity radiculopathy, sciatic nerve, prior to November 12, 2014, is remanded. Entitlement to an initial evaluation in excess of 10 percent disabling for right lower extremity radiculopathy, anterior crural nerve (femoral), prior to November 12, 2014, is remanded. Entitlement to an initial evaluation in excess of 10 percent disabling for left lower extremity radiculopathy, anterior crural nerve (femoral) prior to November 12, 2014, is remanded. Entitlement to an initial evaluation in excess of 20 percent disabling for right lower extremity radiculopathy, sciatic nerve, since November 12, 2014, is remanded. Entitlement to an initial evaluation in excess of 20 percent disabling for left lower extremity radiculopathy, sciatic nerve, since November 12, 2014, is remanded. Entitlement to an initial evaluation in excess of 20 percent disabling for right lower extremity radiculopathy, anterior crural nerve (femoral), since November 12, 2014, is remanded. Entitlement to an initial evaluation in excess of 20 percent disabling for left lower extremity radiculopathy, anterior crural nerve (femoral), since November 12, 2014, is remanded. Entitlement to a finding of total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from November 1973 to May 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran was initially granted service connection for his bilateral lower extremity radiculopathies in a May 2014 rating decision, evaluated at 10 percent disabling, effective June 12, 2013. In August 2014, the Veteran submitted a statement seeking higher evaluation. A November 2014 rating decision continued the evaluations at 10 percent disabling. The Veteran appealed this decision in May 2015. In August 2018, a rating decision granted 20 percent evaluations for the radiculopathies since November 12, 2014 and continued the 10 percent evaluation prior to this date. The Veteran perfected the appeal in October 2018 and continues to seek the highest maximum evaluation for his radiculopathies. As such, the entire period remains on appeal. In December 2013, a statement from a VA physician was added to the claims file. Here, the physician stated that the Veteran was "unable to maintain gainful employment at this time due to several health issues." When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Although the Veteran has been awarded 100 percent disability for service-connected unspecified depressive disorder effective February 13, 2015, the period on appeal extends back prior to this date. The Veteran testified at a February 2022 hearing held before the undersigned Veterans Law Judge (VLJ) via videoconference. This decision is being rendered prior to the production of a transcript of that hearing; as the claims are remanded for further development, the Veteran is not prejudiced. A transcript will be associated with the claims file in the future. The Veteran contends that he is entitled to an evaluation in excess of 10 percent disabling for his service-connected left and right lower extremity radiculopathies prior to November 12, 2014, and an evaluation in excess of 20 percent since that date. The Veteran was most recently afforded a VA examination evaluating his radiculopathies in May 2017. During the February 2022 Board hearing, he reported that his symptoms have worsened since that time, with noticeable worsening in the last few years. He reported aching and stabbing pains, with pain described as "constant." He stated that standing for a long time exacerbates the pain and that he cannot cross his legs because it puts pressure on his joints. He reported experiencing falls because his feet were not moving as expected; when he tries to move his feet, they reportedly have a mind of their own. He reported a feeling of "pins and needles," with an occasional achy feeling and described experiencing flare-ups twice a week on average. He now uses a Rollator constantly. A new examination is appropriate when there is an assertion, and indication, of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Additionally, the Veteran's claims file only includes records through July 2018. Updated VA treatment records should be obtained. The Board defers decision on the TDIU claim as intertwined with the remanded increased ratings claims. Further, a formal application for TDIU, on a VA Form 21-9840, should be requested to ensure that all factors for consideration in such a claim have been addressed. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Contact the Veteran and request a properly executed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected left and right lower extremity radiculopathies. The claims file must be made available for review by the examiner. The examiner must identify all manifestations and symptoms of the radiculopathies. 4. Upon completion of the above, readjudicate the remanded issue, to include TDIU. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.