Citation Nr: 18154308 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-19 623 DATE: November 29, 2018 REMANDED Entitlement to an increased disability rating in excess of 30 percent for anxiety disorder not otherwise specified is remanded. Entitlement to an increased disability rating in excess of 20 percent prior to June 29, 2017, and 40 percent from June 29, 2017 for L4-5 disk herniation is remanded. Entitlement to an increased disability rating in excess of 40 percent prior to May 1, 2016 and 20 percent from May 1, 2016 for radiculopathy of the right lower extremity is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from January 2008 to January 2009. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Regional Office of the Department of Veterans Affairs (VA). Regarding the issue of entitlement to an increased disability rating for L4-5 disk herniation, in July 2017, the RO increased the Veteran’s evaluation from a 20 percent rating to 40 percent, effective June 29, 2017. Although the Veteran has been granted an increased rating, this does not constitute a full grant of the benefits sought on appeal; therefore, this claim remains for appellate review. AB v. Brown, 6 Vet. App. 35, 39 (1993). 1. Entitlement to an increased disability rating in excess of 30 percent for anxiety disorder not otherwise specified is remanded. According to a November 2017 statement, the Veteran reported that he was taking medical marijuana to manage his pain and mental health. According to VA treatment records, it was noted that the Veteran was prescribed non-VA marijuana under a state-approved program. Therefore, the Board finds that a Remand is required for the RO to contact the Veteran and request that he provide VA with copies of these records or provide any necessary authorization for VA to do so. See 38 U.S.C. § 5103A (b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). While the appeal is in remand status any other outstanding VA and private treatment records should also be obtained and associated with the claims file. See 38 U.S.C. § 5103A(b). Furthermore, the Veteran and his representative continue to assert that current manifestations of his disability warrant an increased rating as to this disorder. The Board’s finds that, after all outstanding medical records are associated with the claims file, a contemporaneous and thorough VA examination (which takes into account the records of the Veteran’s prior medical history, to include any additional medical evidence received subsequent to this remand) would be helpful in resolving the issue on appeal. See Colayong v. West, 12 Vet. App. 524, 532 (1999); Goss v. Brown, 9 Vet. App. 109, 114 (1996). 2. Entitlement to an increased disability rating in excess of 20 percent prior to June 29, 2017, and 40 percent from June 29, 2017 for L4-5 disk herniation is remanded. In reviewing claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim notwithstanding the fact that the Board may not have found the examination necessary in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With regard to the claim for an increased evaluation for service-connected L4-5 disk herniation, the most recent VA examination report of record is dated in June 2017. This VA examination report reflects that it does not include any testing for pain on passive motion, or specify ranges of motion on weight-bearing and non-weight-bearing. Cf. Correia v. McDonald, 28 Vet. App. 158 (2016) (precedential finding 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). Accordingly, the Board finds that a remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his L4-5 disk herniation in accordance with Correia. 3. Entitlement to an increased initial disability rating in excess of 40 percent prior to May 1, 2016 and 20 percent from May 1, 2016 for radiculopathy of the right lower extremity is remanded. 4. TDIU is remanded. With regard to the claims for increased initial evaluation for service-connected right lower extremity radiculopathy and entitlement to a TDIU, these issues are “inextricably intertwined” with the issue of entitlement to an increased evaluation for service-connected L4-5 disk herniation, and they must be decided together. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). While the diagnostic codes for radiculopathy are not based on limitation of motion, disability benefits questionnaires for the back typically include findings as to the severity and extent of any noted radiculopathy. See e.g., VA back examination, dated in June 2017. Therefore, the requested development as to the Veteran’s low back disability is likely to include relevant findings for his right leg radiculopathy. The Board has also requested that any relevant treatment provided after June 2017 be obtained. The matters are REMANDED for the following action: 1. Following any necessary development, the Veteran’s November 2017 request to expedite his appeal due to financial hardship should be considered. 2. Request that the Veteran identify all sources of treatment for his low back, right leg, and anxiety symptoms, specifically, private treatment reflecting the Veteran’s use of medical marijuana, and VA treatment since June 2017. After obtaining all necessary authorizations, attempt to obtain the identified records and associate them with the Veteran’s claims file. If VA is unable to make contact with any identified health care provider, or if no response is received within a reasonable time, this should be documented in the claims file. 3. After the development requested in the second paragraph above has been completed, schedule the Veteran for VA examination by an appropriate medical professional to determine the nature and severity of the Veteran’s anxiety disorder not otherwise specified. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should identify and completely describe all current symptomatology, and describe the impact of such on the Veteran’s occupational and social functioning. 4. After the development requested in the second paragraph above has been completed, schedule the Veteran for an examination of his low back in order to determine the current level of severity of his L4-5 disk herniation and right lower extremity. The electronic claims folder must be made available to the examiner for review, and such review should be noted in the examination report. a) The examiner is asked to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable). If the examiner is unable to conduct the required testing, or concludes required testing is not necessary, he or she should clearly explain why that is so. Correia. b) The examiner must provide an opinion as to the severity of the Veteran’s low back symptoms and how those symptoms impact the Veteran’s occupational functioning. c) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yoo, Counsel