Citation Nr: 20008131 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 14-37 121 DATE: January 30, 2020 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with sciatica is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from November 2004 to November 2008. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 Department of Veterans Affairs (VA) rating decision. In October 2017, a Travel Board hearing was held before the undersigned. A transcript is in the record. In April 2018 this matter was remanded for development. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with sciatica. The April 2018 Board remand noted that the matter of entitlement to a temporary total (convalescence) rating following surgery the Veteran underwent for his spine was raised. The Board also noted that the Veteran had not been afforded a VA examination to assess his lumbar spine disability since his surgery and that there were outstanding treatment records. While the Veteran was afforded a VA lumbar spine examination in August 2019 and updated treatment records were obtained, in October 2019 the Veteran indicated that additional treatment records (from his current treating facility, Mercy Health, dated from June 2019 to the present) were outstanding and pertinent in the matter at hand. Such records have not been obtained. Accordingly, development to secure them is necessary. Further, regarding surgical procedures on the Veteran’s spine since June 2013, the April 2018 remand requested that the examiner indicate whether the surgery required convalescence, and if so, the duration of the convalescence required. The agency of original jurisdiction (AOJ)) was to then readjudicate the claim, to specifically encompass consideration of entitlement to a temporary total (convalescence) rating following any surgery. The August 2019 VA examiner did not, as requested, comment whether any spinal surgeries since June 2013 required convalescence and, if so, the duration of such. And in readjudicating the issue on appeal the RO did not address whether a temporary total (convalescence) rating following surgery was warranted for any period of time under consideration (as the Board instructed in the April 2018 remand). A remand for compliance with the Board’s April 2018 remand instructions is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following s: 1. Ask the Veteran to identify all providers of evaluations and treatment he has received for his low back and sciatica since June 2019, and to submit authorizations for VA to secure complete clinical records of the evaluations and treatment from all private providers identified, to specifically include Mercy Health. Obtain complete updated to the present clinical records from all providers identified, specifically including complete up-to-date records of VA evaluations and treatment. If any private records identified are not received pursuant to a VA request for such, the Veteran should be so notified, and advised that it is ultimately his responsibility to ensure that pertinent private records are received. 2. When the development requested above is completed, arrange for the Veteran’s claims file (with all records received pursuant to the development sought above) to be forwarded to the August 2019 VA lumbar spine examiner, if available [if not to another orthopedic clinician], for re-review and a medical advisory opinion addressing whether any surgical procedures on the Veteran’s spine since June 2013 required convalescence, and if so, the duration of such. The examiner should also review the additional records received pursuant to the request in #1, above. If they show or suggest that the disability at issue is of greater severity than found on August 2019 VA examination, to the extent possible reconcile the disparate findings. 3. Then review the record, arrange for any further development indicated (e.g., if the consulting provider who provides an opinion is unable to reconcile private treatment with the August 2019 VA examination report, another examination to assess the disability) and readjudicate the claim, to specifically encompass consideration of entitlement to a temporary (convalescence) rating following surgery. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.