Citation Nr: 21000902 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 04-33 011 DATE: January 6, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative disc disease, lumbar spine, status post laminectomy, prior to February 6, 2012; in excess of 20 percent from February 6, 2012; and in excess of 40 percent from September 26, 2020; is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy/sciatica, left lower extremity, prior to July 15, 2004; in excess of 20 percent from July 15, 2004; in excess of 10 percent from September 17, 2004; in excess of 20 percent from February 6, 2012; and a compensable rating from September 26, 2020; is remanded. Entitlement to a compensable initial rating for scar, lumbar, status post laminectomy, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1998 to April 2004. These matters come before the Board of Veterans’ Appeals (Board) from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in March 2020, the Board remanded the Veteran’s case for additional development. The case has now been returned to the Board for review. In March 2020, the Board determined that the Veteran’s prior attorney, Mark R. Lippman, properly withdrew from the case, and found the Veteran to be unrepresented. The Board abides by that prior finding and continues to find the Veteran unrepresented. Unfortunately, the Board finds that another remand is required. In February 2020, prior to the Board’s March 2020 remand, the Veteran submitted a VA Form 21 4142a, General Release for Medical Provider Information to VA, identifying current private medical treatment from Dr. NS, Dr. HG and Dr. PS, Dr. IR, and Dr. MN. Though the release form may also be related to the Veteran’s pending service connection claim for chronic pain and depression, the Board notes that the claims file contains earlier treatment records from some of these physicians and the physicians treated the Veteran’s back disability. There is no indication that the RO requested the identified private treatment records. Accordingly, remand is required to request these records. Finally, the March 2020 Board remand requested a new VA examination for the Veteran’s service-connected disabilities. The Board requested that the examiner to provide a full description of effects that the Veteran’s degenerative disc disease and radiculopathy had on the Veteran’s ordinary activities during the appeal period. While the September 2020 VA examiner answered the question, it appears that the examiner only commented on the effects that the Veteran’s degenerative disc disease had on his ordinary activities. Though the examiner found that the Veteran did not have radiculopathy on examination in September 2020, the examiner must still address the prior findings of radiculopathy and what effects the radiculopathy had on the Veteran’s ordinary activities during the appeal period. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the examiner indicated that the Veteran would have total loss of range of motion with spasm when he experienced a flare-up or when the joint was used repeatedly over time. The Board is unable to determine whether the examiner’s finding of total loss of range of motion would be akin to unfavorable ankylosis, which may warrant a higher rating. On remand, the examiner must address this finding. Finally, the Board notes that the examiner was asked to address what the Veteran’s passive range of motion would have been on examination in December 2003. However, that December 2003 examination report already includes passive range of motion findings and the Board will not require the examiner to comment further. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Finally, the Veteran was granted a separate noncompensable initial rating for a scar as a result of his service-connected degenerative disc disease, lumbar spine, status post laminectomy. Because this matter is considered part of the Veteran’s claim for a higher initial rating for his degenerative disc disease, lumbar spine, status post laminectomy, the matter remains on appeal. The matter must also be remanded due to the identified private medical treatment records as detailed above. The matters are REMANDED for the following action: 1. Request private treatment records from the identified providers on the February 2020 VA Form 21-4142a: Dr. NS, Dr. HG and Dr. PS, Dr. IR, and Dr. MN. The Veteran should be informed that in the alternative he may obtain and submit the records himself. The Board notes that these doctors are all located in Germany, and translation of documents may be necessary 2. Request an addendum opinion from the September 2020 VA examiner; or, if unavailable, from a suitably qualified examiner. The claims file must be reviewed in conjunction with the opinion. The examiner must address the finding that the Veteran would have total loss of range of motion when the Veteran experiences a flare-up or repeated use over time, and whether this would be akin to favorable ankylosis or unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. The examiner must also address the effects that the Veteran’s radiculopathy, even if not currently present, had on his ordinary activities during the appeal period. A full and complete rationale must be provided for any opinion reached. 3. Upon completion of the above, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.