Citation Nr: 1740282 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 10-49 425 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating greater than 10 percent prior to May 23, 2011, greater than 20 percent prior to March 17, 2015, and greater than 40 percent thereafter, for lumbar anterolisthesis with degenerative disc disease. 2. Entitlement to an initial rating greater than 10 percent for radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from May 1968 to November 1975, including in combat in the Republic of Vietnam. This case has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted, in pertinent part, the Veteran's claim of service connection for lumbar anterolisthesis with degenerative disc disease, assigning a 10 percent rating effective August 21, 2009. The Veteran disagreed with this decision in June 2010. He perfected a timely appeal in December 2010. In a June 2011 rating decision, the RO assigned a higher initial 20 percent rating effective May 23, 2011, for the Veteran's service-connected lumbar anterolisthesis with degenerative disc disease. Because the Veteran currently lives within the jurisdiction of the RO in Winston-Salem, North Carolina, that facility has jurisdiction in this appeal. The Veteran appointed his current service representative to represent him before VA by filing a completed VA Form 21-22 in July 2014. A Travel Board hearing was held in August 2014 at the RO in Winston-Salem, North Carolina, before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In December 2014, the Board remanded, in pertinent part, the Veteran's higher initial rating claim for lumbar anterolisthesis with degenerative disc disease to the Agency of Original Jurisdiction (AOJ) (in this case, the RO in Winston-Salem, North Carolina) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ attempt to obtain the Veteran's updated treatment records and schedule him for appropriate examination to determine the current nature and severity of his service-connected lumbar anterolisthesis with degenerative disc disease. The identified records subsequently were associated with the claims file and the requested examination occurred in March 2015. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In an October 2015 rating decision, the AOJ assigned a higher initial 40 percent rating effective March 17, 2015, for the Veteran's service-connected lumbar anterolisthesis with degenerative disc disease. The AOJ also granted a separate service connection claim for radiculopathy of the left lower extremity, assigning an initial 10 percent rating effective March 17, 2015, as part and parcel of the Veteran's higher initial rating claim for lumbar anterolisthesis with degenerative disc disease. Because the initial ratings assigned to these service-connected disabilities are not the maximum rating available for this disability, both of these claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In October 2016, the Board denied the Veteran's claim for an initial rating greater than 10 percent prior to May 23, 2011, greater than 20 percent prior to March 17, 2015, and greater than 40 percent thereafter, for lumbar anterolisthesis with degenerative disc disease and also granted an initial 10 percent rating effective August 21, 2009 (the date of service connection for lumbar anterolisthesis with degenerative disc disease) for radiculopathy of the left lower extremity. The Board next denied an initial rating greater than 10 percent for radiculopathy of the left lower extremity. The Veteran, through an attorney, and VA's Office of General Counsel, appealed the Board's October 2016 decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (Joint Motion) in May 2017. The Court granted the Joint Motion in June 2017, vacating and remanding that part of the Board's October 2016 which denied higher initial ratings for lumbar anterolisthesis with degenerative disc disease and for radiculopathy of the left lower extremity. Having reviewed the record evidence, and because it is bound by the Court's Order granting the Joint Motion, the Board finds that the issues on appeal should be characterized as stated on the title page. As noted previously, the issue of entitlement to service connection for a cervical spine disability, including as due to a service-connected lumbar spine disability and/or a service-connected right shoulder disability, has been raised by the record in statements at the Veteran's August 2014 Board hearing but has not been adjudicated by the AOJ. The Board previously referred this claim to the AOJ for adjudication in October 2016. To date, however, the AOJ has not taken any action on this claim. Therefore, the Board still does not have jurisdiction over this claim and it is referred again to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. Unfortunately, as is explained below, the appeal is REMANDED again to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND With respect to the Veteran's higher initial rating claim for lumbar anterolisthesis with degenerative disc disease, both parties to the Joint Motion criticized the Board for relying on the March 2015 VA examination in adjudicating this claim as this examination did not comply with the Court's decision in Correia. See Joint Motion for Remand ("Joint Motion") dated May 25, 2017, at pp. 2-3. The Board notes in this regard that, in Correia, the Court mandated new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the lumbar spine, as in this case) in order to satisfy judicial review in increased rating (or higher initial rating) claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. As noted in the May 2017 Joint Motion, the Veteran's most recent VA examination for the lumbar spine in March 2015 did not comply with Correia. For example, there is no indication in the March 2015 VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) whether the lumbar spine range of motion obtained at that examination is active or passive or in weight-bearing or non-weight-bearing, although the VA examiner found no evidence of pain on weight-bearing. Accordingly, and because it is bound by the Court's June 2017 Order granting the Joint Motion, the Board finds that, on remand, the Veteran should be scheduled for updated VA examination to determine the current nature and severity of his service-connected lumbar anterolisthesis with degenerative disc disease. See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). With respect to the Veteran's higher initial rating claim for radiculopathy of the left lower extremity, both parties to the Joint Motion did not contest the October 2016 Board decision to the extent that it assigned a higher initial 10 percent rating effective August 21, 2009 (the date of service connection lumbar anterolisthesis with degenerative disc disease) for radiculopathy of the left lower extremity. See Joint Motion at pp. 1-2. Both parties to the Joint Motion also asserted, however, that the Board had erred in not determining whether the Veteran's reported history of decreased reflexes noted on the VA examinations of record in November 2009, March 2011, and in March 2015 suggested "symptoms of moderate severity." Id., at pp. 3-4 (citations omitted). Because both parties to the Joint Motion alleged that the March 2015 VA examination was inadequate, and because the Court granted the Joint Motion, the Board finds that it cannot rely on the findings obtained at that examination concerning the alleged severity of the Veteran's service-connected radiculopathy of the left lower extremity. The Board observes in this regard that the Veteran's service-connected radiculopathy of the left lower extremity currently is evaluated by analogy to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520 (paralysis of the sciatic nerve). See 38 C.F.R. § 4.124a, DC 8520 (2016). The Board also observes that VA examinations dated in November 2009 and in March 2011 document the presence of, at worst, mild incomplete paralysis of the sciatic nerve (or a 10 percent rating under DC 8520). Id. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). In summary, given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in March 2011, the Board concludes that, on remand, he should be scheduled for an updated VA examination to determine the current nature and severity of his service-connected radiculopathy of the left lower extremity. The AOJ also should attempt to obtain updated treatment records for the Veteran. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA and private treatment records which have not been obtained already. 2. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected lumbar anterolisthesis with degenerative disc disease and his service-connected radiculopathy of the left lower extremity. In order to comply with the Court's decision in Correia, the examiner must test and record the range of motion for the Veteran's lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then he or she should clearly explain why that is so. The examiner also should state whether the Veteran's radiculopathy of the left lower extremity, if present, results in moderate, moderately severe, or severe incomplete paralysis of the sciatic nerve or complete paralysis of the sciatic nerve. 3. Readjudicate the appeal. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals 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) (2016).