Citation Nr: 1807928 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 10-28 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for right lower extremity radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Hoover, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1983 to December 1987 and from October 1993 to July 1999. This case comes before the Board of Veterans' Appeals (Board) from a February 2009 and a June 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The February 2009 Rating Decision, in pertinent part, continued a 20 percent rating for a low back disability. In December 2009, the Veteran filed a Notice of Disagreement. The RO furnished the Veteran a Statement of the Case in June 2010. The June 2010 Decision Review Officer Decision, in pertinent part, granted service connection for right lower extremity radiculopathy (as part and parcel of the service-connected low back disability) and assigned a 10 percent rating, effective August 29, 2008. Subsequently, the Veteran filed a Substantive Appeal (VA Form 9) with the continued denial of increased rating for a low back disability (and associated right lower extremity radiculopathy) in July 2010. A December 2011 rating decision proposed to reduce the disability rating for right lower extremity radiculopathy from 10 percent to 0 percent. Subsequently, a March 2012 rating decision decreased the disability rating for right lower extremity radiculopathy from 10 percent to 0 percent, effective June 1, 2012. In June 2010, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A copy of the transcript has been associated with the claims file. In a November 2012 decision, the Board granted a 10 percent disability rating for right lower extremity radiculopathy, effective June 1, 2012, and remanded the claim for additional development. A March 2013 rating decision effectuated the Board's November 2012 decision by granting a 10 percent rating for right lower extremity radiculopathy, effective June 1, 2012. The rating decision also increased the disability rating for right lower extremity radiculopathy, from 10 percent to 20 percent, effective March 1, 2013. However, as this grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In July 2015, the Board issued a decision that granted a 20 percent disability rating for the period prior to March 1, 2013, but denied a disability rating in excess of that amount during the appeal period. The Veteran appealed only the Board's denial of a disability rating in excess of 20 percent for the right lower extremity radiculopathy to the United States Court of Appeals for Veterans Claims (Court). In November 2015, the Court granted the Joint Motion for Partial Remand filed by the representatives for both parties, vacating the Board's decision as to the issue of a disability rating in excess of 20 percent only, and remanding that matter to the Board for further proceedings consistent with the joint motion. The AOJ effectuated the 20 percent disability rating for right lower extremity radiculopathy, from August 29, 2008, in a July 2015 rating decision. In March 2016, the Board denied the Veteran's claim for an initial disability rating in excess of 20 percent for right lower extremity radiculopathy. The Veteran appealed the Board's decision to the Court. In May 2017, the Court granted the joint motion for partial remand filed by the representatives for both parties, vacating the Board's decision as to the issue of a disability rating in excess of 20 percent only, and remanding that claim to the Board for further proceedings consistent with the joint motion. This appeal now returns before the Board for review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Therefore, any future consideration of the Veteran's claim should take into account the existence of the electronic 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 Unfortunately, while the Board sincerely regrets the additional delay, additional evidentiary development is necessary prior to the adjudication of the issue on appeal. The Board notes that the Veteran was last afforded a VA examination to assess the severity of his right lower extremity radiculopathy in March 2013, over four years ago. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Veteran recently submitted new evidence to the Board suggesting that the his disability has worsened since the last VA examination. Specifically, a July 27, 2017 VA treatment record shows that the Veteran reported a worsening of his right lower extremity radiculopathy. As worsening symptomatology has been alleged, the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected right lower extremity radiculopathy. See VAOPGCPREC 11-95; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). Furthermore, a remand is also required in order to address the symptomatology described by the Veteran in his June 2012 hearing, during which the Veteran testified that he had a shooting pain in his lower extremity on prolonged standing causing his leg to give way. The Board notes that the Veteran has alleged the same symptoms for both his radiculopathy claim and his claim for his right knee degenerative joint disease with Baker's cyst. See June 2012 Hearing Transcript and November 2017 Compensation and Pension Examination. Because the Veteran is claiming the same symptoms for both disorders, the Board finds that clarification as to the etiology of the symptomatology is necessary in order to appropriately decide the claim. Lastly, the justifications for ratings of severity were not adequately explained. As such, clarification is needed in the next examination in order to address the topics of severity and symptomatology. 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. The AOJ should ask the Veteran to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his right lower extremity radiculopathy, and to provide authorizations for VA to obtain records of any such private treatment. The AOJ should obtain for the record the clinical records of all pertinent evaluations or treatment (records of which are not already associated with the record) from the providers identified. The AOJ should make reasonable efforts to obtain all outstanding VA records pertaining to evaluations and/or treatment for the Veteran's right lower extremity radiculopathy. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private records are received. 2. After instruction (1) is completed, the Veteran should be scheduled for a VA examination with an appropriate examiner to determine the nature and severity of manifestations of his service-connected right lower extremity radiculopathy. The examiner should review the claims file and copy of this Remand in conjunction with the examination. All studies and tests needed to ascertain the status of the service-connected right lower extremity radiculopathy, to include any medically indicated test to include motor, sensory, and reflex testing, including examination of coordination, stance and gait, should be performed and a written interpretation of such should be associated with the examination report. The examiner should generally record pertinent medical complaints, symptoms, and clinical findings. The examiner should identify the presence, or absence of the following: pain; paresthesias; numbness; muscle atrophy; changes in the skin indicative of disuse; weakness, incoordination; temperature changes; or any other objective manifestations that would demonstrate disuse or neurological impairment attributable to the service-connected right lower extremity radiculopathy. The examiner is asked to comment on the Veteran's subjective complaints of shooting pain into his right lower extremity, which he claimed results in his right leg/knee giving out, as he attested to at the June 2012 Hearing and reported at the March 2013 and November 2017 VA examinations; and address the following: **The examiner is asked to identify the signs and symptoms associated with (1) the service-connected right lower extremity radiculopathy; and (2) the nonservice-connected right knee degenerative joint disease with Baker's cyst. **The examiner is asked to determine, if possible, whether any (or all) of the symptomatology associated with the service-connected the right lower extremity radiculopathy is separate and distinct from, or is duplicative of or overlapping with, the symptomatology of the nonservice-connected degenerative joint disease of the right knee with Baker's cyst. The examiner should comment on whether the Veteran's subjective complaints are consistent with the objective findings. The examiner is asked to identify the anatomical localization of the nerves and muscle groups affected and state whether the level impairment is best characterized as moderate, moderately severe, or severe with marked muscular atrophy; and explain why the stated level of impairment is so. If any nerve involvement is wholly sensory, the examiner should explain why this is so. A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate. 3. Then, the AOJ should review the record, conduct any additional development deemed necessary, and readjudicate the issue of entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy. If the benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ DEBORAH W. SINGLETON 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).