Citation Nr: 22019568 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 15-14 829 DATE: April 1, 2022 REMANDED Entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1966 to March 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by a VA Regional Office (RO). The Veteran testified before the undersigned at a virtual tele-hearing in November 2021. The transcript of the hearing has been associated with the claims file and considered as evidence in making this decision. By way of background, the Veteran filed an increased rating claim for his service connected DDD of the lumbar spine in August 2012. Upon development of the Veteran's claim, the Veteran was granted an increased 40 percent rating in a July 2020 rating decision, effective November 6, 2018. This rating decision also granted separate ratings for bilateral lower extremity radiculopathy of the sciatic nerve as secondary to his service connected DDD of the lumbar spine, at 20 percent effective November 7, 2018. A December 2020 rating decision later corrected the effective date of this award to reflect the date upon which the Veteran filed his increased rating claim on August 27, 2012. The Board notes, as less than the maximum available benefit for a schedular rating was awarded and to the extent that increase was not awarded for the entirety of the claims period, the claim remains before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). In October 2020, the Veteran's claim returned to the Board and a remand was ordered to afford the Veteran a new VA examination for his DDD of the lumbar spine which adequately considers the Veteran's reports of flare ups and to indicate whether or not the Veteran has ankylosis of the spine. A review of the claims file now shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). However, as will be discussed in greater detail below, further remand is warranted to ascertain the current nature and severity of the Veteran's DDD of the lumbar spine and bilateral sciatic nerve radiculopathy of the lower extremities. The Board notes in Rice, the Court held that a claim for a total rating based on individual unemployability (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. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has argued, and the record does indicate, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has been raised and along with the other claims now on appeal, will be remanded for further development. Preliminary Matters The Board notes, the Veteran has made several statements related to rheumatoid arthritis. Specifically, that he has rheumatoid arthritis all over his body. See November 2021 Board Hearing, P. 5. However, it does not appear that these contentions are related to his lumbar spine increased rating claim. Rather they are an independent claim for service connection. For instance, in March 2022, VA received correspondence from the Veteran which indicates that he contends his rheumatoid arthritis is related to herbicide agent exposure. Also, the Veteran is already service connected for rheumatoid arthritis of the right elbow and right knee status post a total knee replacement and has never filed an appeal to the ratings assigned to these conditions. Additionally, the Veteran has never contended that any rheumatoid arthritis is secondary to his service connected DDD of the lumbar spine or is otherwise a "complication" of his lumbar spine condition. For these reasons, although the Board acknowledges the Veteran's statements related to rheumatoid arthritis, the statements are unrelated to the pending issue on appeal. Cf. Bailey v. Wilkie, 33 Vet. App. 188 (2021). To the extent the Veteran is seeking a higher rating for his rheumatoid arthritis already in place of the right elbow and right knee, or is seeking further service-connection for rheumatoid arthritis of other joints, the Board invites the Veteran to file such a claim so his contentions can be clear and the issue can be developed appropriately. 1. Entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine is remanded. 2. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve is remanded. 3. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve is remanded. The Veteran contends he is experiencing worsened DDD lumbar spine and bilateral lower extremity radiculopathy symptoms entitling him to a higher disability rating. 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). During the November 2021 hearing, the Veteran testified that he has been experiencing worsened lumbar spine symptoms. The Veteran was last afforded a VA examination to determine the severity of his lumbar spine symptoms in November 2020. In addition to worsening, the Veteran also testified, and treatment records reference, that he has complained of symptoms that were not reflected in the November 2020 VA examination including tingling and numbness. See November 2021 Board Hearing, P. 8. Thus, remand is necessary to afford the Veteran a contemporaneous VA examination to determine the current severity of his lumbar spine condition and any related neurologic conditions to include bilateral lower extremity sciatic nerve radiculopathy. The Board further notes, that the November 2020 VA lumbar spine examiner noted the Veteran had moderately severe bilateral radiculopathy symptoms. However, the examiner failed to indicate what type of symptoms the Veteran experienced and instead listed the symptoms of radiculopathy as "none". During the November 2021 Board hearing, the Veteran indicated he did not undergo any nerve specific testing during the November 2020 VA examination. See November 2021 Board Hearing, P. 8. As such, the Board finds a specific peripheral nerves VA examination is required while on remand with all necessary testing to include EMG tests, in order to ascertain the current severity of the Veteran's bilateral lower extremity radiculopathy. See 38 C.F.R. § 4.2, providing that if an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. See also Mittleider v. West, 11 Vet. App. 181 (1998) (holding that when it is impossible to separate the effects of a service- connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the veteran's favor and the symptoms in question attributed to the service-connected disability). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran asserts that his service-connected musculoskeletal conditions prevent him from obtaining employment. Therefore, the matter of entitlement to a TDIU is inextricably intertwined with the Veteran's other remanded issues; accordingly, it must be remanded as well. See Parker v. Brown, 7Vet. App.116 (1994); see also Harris v. Derwinksi, 2Vet. App.180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records from November 2020 to the present. 2. After outstanding records are obtained to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service connected DDD of the lumbar spine, including all orthopedic and neurologic manifestations. The examiner should test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly so state and explain why. The examiner should estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time, based on the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time, or explain why they cannot. The examiner should identify any neurological manifestations, including any lower extremity radiculopathy, the Veteran has experienced at any point during the appeal period and indicate the severity. The examiner should consider the Veteran's medical records and history. The examiner should identify whether the Veteran has ankylosis of the spine and if so, whether it is favorable or unfavorable. In doing so, the examiner is further asked to differentiate any symptoms, if possible, related to the Veteran's DDD of the lumbar spine and any diagnosed rheumatoid arthritis, to include constant pain and stiffness as reported by the November 2020 examiner, and provide a supporting explanation. A compete rationale must be provided for any opinions provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral peripheral neuropathy of the lower extremities. The entire claims file should be reviewed by the examiner and any appropriate tests conducted, including any EMG or NCS deemed warranted. The Veteran's reports should be considered, including reports of constant pain, tingling and numbness. The Veteran's symptomatology should be described in detail, including those used in the rating criteria. A compete rationale must be provided for any opinions and conclusions provided. (Continued on the next page) 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal including the Veteran's claim for TDIU. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.