Citation Nr: 22016188 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-11 457 DATE: March 21, 2022 REMANDED Entitlement to a disability rating in excess of 20 percent for loss of cervical lordosis 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 June 1975 to July 1979. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. Following the RO's August 2016 rating decision, the Veteran timely appealed requesting a hearing before the Board. Said hearing occurred in November 2021, a transcript of which has been associated with the claims file and reviewed. The Board notes additional evidence has been associated with the claims file following the March 2019 Statement of the Case (SOC) which has not yet been reviewed by the RO. During the November 2021 hearing, the Veteran's representative waived Agency of Original Jurisdiction (AOJ) review of this additional evidence in the first instance. Regardless, these matters are being remanded herein for additional development which will allow for AOJ review of the evidence in the first instance. The Board notes that there is an outstanding Privacy Act request that does not appear to have been fulfilled. In November 2021, the Veteran's representative requested a transcript of the November 2021 Board hearing. Because this claim is being remanded, there is no prejudice to the Veteran in referring the Privacy Act Request to the AOJ for appropriate action. Thus, on remand, the AOJ must follow procedures for complying with the pending Privacy Act request. 1. Entitlement to a disability rating in excess of 20 percent for loss of cervical lordosis is remanded. The Veteran contends he is experiencing worsened symptoms of his loss of cervical lordosis warranting a higher disability rating. Specifically, during the November 2021 hearing, the Veteran testified that he has increased pain, immobility during flare-ups, and possible neurological manifestations including numbness and tingling. The Veteran was last afforded a VA examination to determine the severity of his loss of cervical lordosis in October 2018 during which radiculopathy was not indicated nor were there complaints of immobility of the neck. Thus, the Board finds remand is necessary to afford the Veteran a contemporaneous VA examination to determine the current severity of his symptoms. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, prior to and during the Board hearing, the Veteran's representative specifically requested the October 2018 VA examiner's curriculum vitae. Neither the Veteran nor his representative have offered any specific contentions regarding the qualifications of the October 2018 VA examiner. Nonetheless, the Board finds the Veteran is entitled to information about the qualifications of the examiner as requested. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Because the Board has already found a remand is necessary to afford the Veteran a contemporaneous VA examination for his loss of cervical lordosis, in the interests of efficiency, the Board will also grant the Veteran's request to order the RO to provide the qualifications of the October 2018 examiner. 2. Entitlement to TDIU is remanded. The Board finds the issue of entitlement to TDIU has been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). While the Veteran filed an application for TDIU in relation to service-connected hearing loss and schizoid personality disorder in July 2019, the Board finds the issue of entitlement to TDIU was raised when he testified that his neck disability also impacted his ability to maintain employment. Thus, the Board infers a TDIU claim from the record; and as such, takes jurisdiction over the issue. Rice, 22 Vet. App. 447. The Board notes the RO adjudicated the issue of entitlement to TDIU from July 2019, the date of receipt of the Veteran's application for TDIU in a November 2019 rating decision. The remaining period on appeal stemming from the Veteran's increased rating claims for loss of cervical lordosis, however, remains unaddressed. The Board finds the Veteran's inferred TDIU claim is inextricably intertwined with the increased rating claim remanded herein and therefore, must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Pursuant to the November 2021 request for the November 2021 hearing transcript, and in accordance with the procedures for complying with a Privacy Act request, provide a copy of the November 2021 hearing transcript to the Veteran and his representative as requested. 2. Pursuant to the October 2021 request for information about the VA examiner's qualifications consistent with Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), provide the Veteran and his representative with the October 2018 VA examiner's curriculum vitae (CV). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his loss of cervical lordosis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so opining, the examiner is directed to address and consider the Veteran's lay statements of symptoms regarding frequency of flare-ups, immobility of the neck, and possible neurological manifestations including numbness and tingling. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement 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. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) 4. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.