Citation Nr: 1807709 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 11-26 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a low back disorder. 2. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the sciatic nerve of the right lower extremity. 3. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the sciatic nerve of the left lower extremity. 4. Entitlement to an initial compensable rating for radiculopathy of the external cutaneous nerve of the right lower extremity. 5. Entitlement to an initial compensable rating for radiculopathy of the external cutaneous nerve of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from January 1958 to September 1978. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas (hereinafter Agency of Original Jurisdiction (AOJ)). The Veteran testified at a May 2015 videoconference hearing before the undersigned. A transcript of that hearing is included in the claims file. In July 2015 and March 2017, the Board remanded the appeal for further development. That development has been completed, and the appeal has been returned to the Board for further adjudication. In an October 2017 statement, the Veteran's representative requested waiver of initial review by the AOJ for further evidence submitted concerning this appeal. See 38 C.F.R. § 20.1304(c). In a December 2014 rating decision, the AOJ granted service connection for radiculopathy of the external cutaneous nerve of the right and left lower extremities with a noncompensable rating, effective December 22, 2008. In a September 2015 rating decision, the AOJ granted service connection for radiculopathy of the sciatic nerve of the right and left lower extremities with a rating of 20 percent disabled, effective May 13, 2015. The September 2015 rating decision also continued the noncompensable rating for radiculopathy of the external cutaneous nerve of the right and left lower extremities. The Board considers these issues to be part of the claim for an increased rating for a low back disorder and has listed them on the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that a claim is not necessarily limited in scope to a single or particular diagnosis and should be construed "based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed processing that claim"). The Board notes that the November 2017 appellant's brief raised the issues of service connection for hemorrhoids and a bilateral elbow disorder. In a March 2017 decision, the Board denied these claims. If a claim of entitlement to service connection is denied by a Board decision, that decision becomes final on the date stamped on the face of the decision and generally cannot be reopened or allowed. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. Once that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). While the Board cannot exercise jurisdiction over these claims, the appellant's brief does represent a petition to present new claims of entitlement to service connection for these disorders. The Board advises the appellant, however, that he must file the appropriate claims form with the RO. A claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. See also 79 Fed. Reg. 57660 (Sep. 25, 2014) (All claims governed by VA's adjudication regulations must be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.) The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks an increased rating for a low back disorder, and increased initial ratings for related radiculopathy of the sciatic and external cutaneous nerves of the lower extremities. In this case, a remand is necessary to ensure compliance with the Board's March 2017 remand. See Stegall v. West, 11 Vet. App. 269, 271 (1998) (holding that a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). In the March 2017 remand, the Board instructed the AOJ to obtain a VA examination that included the following instruction: "Range of motion measurement must be provided in active motion, passive motion, weight-bearing and nonweight-bearing positions (as appropriate)." The AOJ obtained a VA examination in July 2017 and an addendum opinion in September 2017. Neither of these addressed the range of motion measurements required by the remand instruction. Additionally, the Board notes that the United States Court of Appeals for Veterans Claims (CAVC) in Correia v. McDonald, 28 Vet. App. 158 (2016), held 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. Thus, the CAVC's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The March 2017 remand instruction was intended to satisfy CAVC's holding in Correia. Finally, the September 2017 addendum opinion indicated that the examination did not take place during a flare-up, and the examiner was unable to comment on the Veteran's functional ability during a flare-up without resorting to speculation. Therefore, this addendum report must be returned as inadequate for rating purposes pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The issues of radiculopathy of the sciatic and external cutaneous nerves of the lower extremities are intertwined with the Veteran's low back disorder. On remand, the AOJ must obtain a VA examination for the Veteran's low back disorder that includes an evaluation of the radiculopathy of his lower extremities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all VA treatment records for the Veteran dated from October 2017 to the present. 2. Thereafter, schedule the Veteran for a VA examination to address the current severity of his thoracolumbar disorder. The claims file must be made available to the examiner in conjunction with the examination. All clinical findings must be reported in detail and correlated to a specific diagnosis. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. The examiner should also address the severity (i.e., favorable or unfavorable) and location of any ankylosis, and note any functional limitation caused by the thoracolumbar disorder. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing on the thoracolumbar back in the following areas: * Active motion; * Passive motion; * Weight-bearing; and * Nonweight-bearing. The examiner should also address the July 2017 VA examination diagnosis of intervertebral disc syndrome (IVDS), and document the number and duration of any incapacitating episodes in the previous 12 months. The examiner is informed that an incapacitating episode is a period of acute signs and symptoms caused by IVDS that requires bed rest prescribed by a physician and treatment by a physician. 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. The examiner should note any functional limitation caused by the thoracolumbar disorder. The examiner should also determine the extent of any neurological impairment related to his thoracolumbar spine disorder, including the sciatic and external cutaneous nerves of the lower extremities. All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings. 3. After completing the actions detailed above, readjudicate the claim. If any benefit is not granted to Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).