Citation Nr: 1630721 Decision Date: 08/02/16 Archive Date: 08/11/16 DOCKET NO. 10-29 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for degenerative disk disease with lumbar spondylosis and dextroscoliosis. 2. Entitlement to an evaluation in excess of 20 percent for right sciatic radiculopathy prior to December 10, 2014 and in excess of 40 percent thereafter. 3. Entitlement to an evaluation in excess of 10 percent for left sciatic radiculopathy prior to December 10, 2014 and in excess of 20 percent thereafter. 4. Entitlement to an effective date earlier than February 8, 2012, for separate compensable ratings for bilateral sciatic nerve radiculopathy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to an evaluation in excess of 20 percent for degenerative disk disease with lumbar spondylosis and dextroscoliosis was before the Board in January 2012 when it was remanded for additional development. In December 2013, the Board denied the Veteran's claim for an increased rating for degenerative disk disease with lumbar spondylosis and dextroscoliosis but granted separate evaluations of 20 percent for right sciatic nerve radiculopathy and 10 percent for left sciatic nerve radiculopathy both effective in February 2012. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2014 Order, the Court granted a May 2014 Joint Motion for Remand (JMR). Pursuant to the May 2014 JMR, the issues have been characterized as reflected above, to include the issue of an earlier effective date for separate compensable ratings for bilateral sciatic nerve radiculopathy. Thereafter, these matters were before the Board in September 2014 and September 2015 when they were remanded for additional development and consideration. They now return for appellate review. During the pendency of the claim, a March 2015 rating decision increased the evaluation of the Veteran's right sciatic nerve radiculopathy to 40 percent, effective December 10, 2014. The March 2015 rating decision also increased the evaluation of the Veteran's left sciatic nerve radiculopathy to 20 percent, effective December 10, 2014. Although each increase represents a grant of benefits, a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). As identified in September 2014 and September 2015 Board decisions, the issues of service connection for a heart condition, claimed as heart murmur and abnormal EKG; prostate cancer; a bilateral hip condition and a bilateral knee condition have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Board finds it necessary to remand issues of on appeal to the AOJ for additional development and consideration. With respect to the claim for entitlement to an evaluation in excess of 20 percent for degenerative disk disease with lumbar spondylosis and dextroscoliosis, the Board finds the most recent March 2016 back conditions examination report to be inadequate. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Specifically, the March 2016 back conditions examination report documented range of motion testing and noted there was no evidence of pain with weight bearing. However, an examination must include test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, which were not all conducted during this examination. See Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). Moreover, the March 2016 back conditions examination report noted the existence of flare-ups but found it was not possible, without resorting to mere speculation, to estimate either loss of range of motion or describe loss of function, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Unfortunately, this information is important to adequately evaluate the Veteran's claim and must be obtained if possible. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a(3)(iii) (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, for the foregoing reasons, the Board finds that a new VA examination to determine the current severity of the Veteran's degenerative disk disease with lumbar spondylosis and dextroscoliosis is warranted. Additionally, in light of the remand, updated VA treatment records should be obtained. The record reflects the Veteran most recently received treatment from the Wm. Jennings Bryan Dorn VA Medical Center (VAMC), located in Columbia, South Carolina in March 2016. Thus, on remand, updated VA treatment records from the Wm. Jennings Bryan Dorn VAMC, to include all associated outpatient clinics, since March 2016, should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(c) (West 2014); 38 C.F.R. § 3.159(c)(2) (2015). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Finally, the Veteran's claims for an increased ratings and an earlier effective date for bilateral sciatic nerve radiculopathy is part and parcel of his claim for an increased rating for degenerative disk disease with lumbar spondylosis and dextroscoliosis as it was raised within the context of such. Thus, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)(issues are "inextricably intertwined" when a decision on one issue would have a significant impact on a Veteran's claim for the second issue). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records, since March 2016, from the Wm. Jennings Bryan Dorn VAMC, to include all associated outpatient clinics, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Schedule the Veteran for VA examination to determine the current severity of his service-connected degenerative disk disease with lumbar spondylosis and dextroscoliosis. The claims folder must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, must be accomplished. All ranges of motion involving the degenerative disk disease with lumbar spondylosis and dextroscoliosis should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's service-connected degenerative disk disease with lumbar spondylosis and dextroscoliosis, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Additionally, the examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's degenerative disk disease with lumbar spondylosis and dextroscoliosis, could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. 3. The Veteran must be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). 4. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).