Citation Nr: 1807851 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 15-20 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 40 percent for radiculopathy of the left lower extremity. 2. Entitlement to an effective date prior to December 20, 2011, for the grant of service connection for radiculopathy of the left lower extremity. 3. Entitlement to an initial disability evaluation in excess of 20 percent for radiculopathy of the right lower extremity. 4. Entitlement to an effective date prior to December 20, 2011, for the grant of service connection for radiculopathy of the right lower extremity. 5. Entitlement to service connection for prostate cancer. 6. Entitlement to a disability evaluation in excess of 40 percent for degenerative spondylosis of the lumbar spine with degenerative disc disease. 7. Entitlement to service connection for sleep apnea. 8. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 9. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disorder, claimed as secondary to degenerative spondylosis of the lumbar spine with degenerative disc disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to June 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before the undersigned Veterans Law Judge in November 2017. A transcript of that hearing has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). 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 entitlement to higher disability evaluations for radiculopathy of the left lower extremity, radiculopathy of the right lower extremity, and degenerative spondylosis of the lumbar spine with degenerative disc disease; entitlement to earlier effective dates for the grants of service connection for radiculopathy of the left lower extremity and radiculopathy of the right lower extremity; entitlement to service connection for prostate cancer, sleep apnea, and an acquired psychiatric disorder; and seeks to reopen a previously denied claim of entitlement to service connection for a cervical spine disorder. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. At the outset, the Veteran testified at his November 2017 Board videoconference hearing that he received treatment at the Overton Brooks VA Medical Center in Shreveport, Louisiana, as recently as November 2017. However, the most recent VA treatment records associated with the claims file are dated in March 2015. Consequently, any outstanding VA treatment records dated from March 2015 to the present should be obtained and associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Furthermore, at his November 2017 Board videoconference hearing, the Veteran submitted additional medical records accompanied by a signed waiver of RO jurisdiction of that additional evidence. However, although the waiver form, dated on November 9, 2017, has been associated with the claims file, the attached medical records are absent. The Board has not yet had the opportunity to review the records submitted at the videoconference hearing, and is not privy to the specific nature or content of these records. As such, the Veteran should be asked to resubmit or authorize the Board to obtain the medical records submitted at his November 2017 Board videoconference hearing. Additionally, with respect to the claims of entitlement to higher disability evaluations for radiculopathy of the left lower extremity, radiculopathy of the right lower extremity, and degenerative spondylosis of the lumbar spine with degenerative disc disease, the Veteran was last provided with VA examinations with respect to these disorders in April 2012. At his November 2017 Board videoconference hearing, the Veteran indicated that the symptoms associated with these disabilities had worsened in severity. Given this evidence of worsening of symptomatology, the Board finds a remand for a contemporaneous VA examination is warranted. 38 C.F.R. § 3.159(c)(4)(i) (2017); see Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that the Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). 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. Associate with the claims file all VA treatment records for the Veteran dated from March 2015 to the present. All requests and responses, positive and negative, must be documented in the claims file. 2. Request that the Veteran resubmit and/or identify the medical records originally submitted at his November 2017 Board videoconference hearing. Provide the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to the VA, in order to secure any outstanding or updated private treatment records pertaining to his disabilities on appeal, to include the medical records originally submitted at his November 2017 Board videoconference hearing. Make two attempts to obtain complete treatment records from any private provider, unless the first attempt demonstrates that any further attempt would be futile. If private records are identified but not obtained, then notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 3. Provide the Veteran with a VA examination to determine the current severity of his service-connected degenerative spondylosis of the lumbar spine with degenerative disc disease, as well as the associated radiculopathy of the bilateral lower extremities. The claims file must be made available to the examiner. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the service-connected lumbar spine. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected lumbar spine. The examiner is also requested to offer opinions as to whether the Veteran's radiculopathy of the bilateral lower extremities more nearly approximates mild, moderate, or severe incomplete paralysis of the affected nerves. The examiner should also address any other associated neurological abnormalities. A complete rationale for all opinions provided should be offered. 4. After completing the above actions, and any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, then the Veteran and his representative must be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ U. R. POWELL 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) (2017).