Citation Nr: 20033076 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 16-46 752 DATE: May 12, 2020 REMANDED Entitlement to a rating in excess of 40 percent for service-connected lumbosacral strain status-post L3-L4 and L4-L5 spinal fusion surgeries is remanded. Entitlement to special monthly compensation (SMC) based upon aid and attendance and/or housebound status is remanded. Entitlement to a temporary total evaluation for convalescence prior to January 25, 2016 and after August 1, 2016 for lumbar spine surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to June 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated June 2016 and September 2016 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a December 2018 Board decision, the claims were remanded for further evidentiary development. A supplemental statement of the case (SSOC) was issued in February 2020. The Board notes that the December 2018 Board decision also remanded the matter of entitlement to an effective date prior to July 1, 2000 for the award of service connection for scars associated with lumbar spine surgeries in order for the issuance of a statement of the case (SOC). As such, a SOC was issued in September 2019; however, the Veteran failed to perfect an appeal of said claim. As such, that matter is not appellate status and will be addressed no further herein. The Board also notes that in March 2020, after the Veteran’s appeal had been certified to the Board, the Veteran’s attorney submitted a motion to withdraw, citing 38 C.F.R. § 20.608 and unspecified “factors which make the continuation of representation impossible, impractical, or unethical.” The motion of the Veteran’s attorney is denied. First, he is advised that section 20.608 was replaced with 38 C.F.R. § 20.6 over a year ago. Regardless, his motion fails to meet the criteria of either section 20.608 or 20.6, as he failed to include a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the Veteran, setting forth the address to which the copy was mailed. 1. Entitlement to a rating in excess of 40 percent for service-connected lumbosacral strain status-post L3-L4 and L4-L5 spinal fusion surgeries is remanded. The Veteran asserts that he is entitled to a rating in excess of 40 percent for service-connected lumbosacral strain status-post spinal fusion surgeries. He was last afforded a VA examination as to this disability in May 2016. At that time, the VA examiner was unable to perform range of motion testing because the Veteran was still recovering from a January 2016 spinal fusion surgery. Moreover, private treatment records show that the Veteran has continued to experience low back pain radiating to the right lower extremity after the January 2016 spinal fusion. See, e.g., the private treatment records dated in July 2017. Magnetic resonance imaging (MRI) conducted in May 2018 revealed a diffuse disc bulge at L2-L3 which effaces on the anterior thecal sac and severe canal stenosis. Accordingly, given absence of range of motion testing at the May 2016 VA examination as well as medical evidence suggestive of worsening lumbar spine symptomatology, the Board finds that this matter must be remanded in order to obtain an updated VA examination to assess the severity of the service-connected lumbosacral spine disability. The Board additionally notes that a February 2020 rating decision suggested that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). As these records are potentially pertinent to the pending claims, the AOJ should obtain the Veteran’s SSA records upon remand. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010) (VA’s duty to assist includes obtaining records from SSA when potentially relevant). On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran’s claims file. 2. Entitlement to SMC based upon aid and attendance and/or housebound status is remanded. 3. Entitlement to a temporary total evaluation for convalescence prior to January 25, 2016 and after August 1, 2016 for lumbar spine surgery is remanded. The matters of entitlement to SMC based upon aid and attendance and/or housebound status as entitlement to a temporary total evaluation for convalescence are inextricably intertwined with the matter of entitlement to an increased rating for the service-connected lumbosacral spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, these claims must also be remanded. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the appellant. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Request that SSA furnish a copy of its decision awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. The Veteran should be afforded a VA examination in order to determine the extent of his service-connected lumbosacral strain status-post spinal fusion surgeries must be made available to the examiner for review in connection with the examination. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. In rendering his/her findings, the examiner should identify any evidence of neurological manifestations due to the service-connected lumbosacral strain status-post spinal fusion surgeries. The examiner must identify the specific nerves involved or seemingly involved and describe the degree of impairment as mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis. In addition, the examiner should address the impact of the lumbosacral spine disability upon the Veteran’s industrial activities, including his ability to obtain and maintain substantially gainful employment. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.