Citation Nr: 21000933 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-53 828 DATE: January 6, 2021 ORDER The appeal for entitlement to service connection for an overactive bladder is dismissed. The appeal for entitlement to service connection for a neurological disorder of the left lower extremity is dismissed. REMANDED Entitlement to a disability rating in excess of 20 percent for intervertebral disc syndrome (previously rated as lumbar strain), prior to December 20, 2019, and in excess of 40 percent, thereafter, is remanded. Entitlement to service connection for a neurological disorder of the right lower extremity is remanded. FINDING OF FACT While in remand status, a July 2020 rating decision granted the Veteran’s claims of entitlement to service connection for an overactive bladder and radiculopathy of the left lower extremity. CONCLUSIONS OF LAW 1. As the benefit sought on appeal with respect to the matter of service connection for an overactive bladder has been granted, there remains no case or controversy as to the issue of entitlement to service connection for an overactive bladder. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 2. As the benefit sought on appeal with respect to the matter of service connection for a neurological disorder of the left lower extremity has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a neurological disorder of the left lower extremity. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDING AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Air Force from March 1979 to April 1987, September 1996 to February 2007, and March 2007 to July 2009. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. In May 2019, the Board, in pertinent part, remanded the instant issues on appeal for further development. While the matter was in remand status, the RO granted the claims of entitlement to service connection for an overactive bladder and radiculopathy of the left lower extremity in a July 2020 rating decision, resolving the claims of entitlement to service connection for an overactive bladder and a neurological disorder of the left lower extremity. Additionally, the RO increased the Veteran’s evaluation for the service-connected lumbar spine disability to 40 percent disabling, effective December 20, 2019. The RO recharacterized the disability as intervertebral disc syndrome. As this grant does not constitute a full grant of the benefit sought on appeal, the increased rating claim is still on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue has been restated accordingly on the title page. Dismissal 1. Entitlement to service connection for an overactive bladder is dismissed. See Argument Below 2. Entitlement to service connection for a neurological disorder of the left lower extremity is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, a July 2020 rating decision granted the Veteran’s claims of entitlement to service connection for an overactive bladder and radiculopathy of the left lower extremity. This action resolved the claims for service connection. As a result, no case or controversy regarding the matters of service connection for an overactive bladder and a neurological disorder of the left lower extremity remain, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105(d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to these matters, and the matters are dismissed.   REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a disability rating in excess of 20 percent for intervertebral disc syndrome (previously rated as lumbar strain), prior to December 20, 2019, and in excess of 40 percent, thereafter, is remanded. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the May 2019 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran a VA back examination to assess the current severity of her service-connected lumbar spine disability, to include compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In December 2019, the Veteran was afforded a VA back examination. The examiner did not provide range of motion measurements for weight-bearing or non-weight-bearing of the back. Moreover, while the examination reported pain on motion, the point during range of motion where pain started was not noted. The examiner did not provide an explanation as to why such testing was unnecessary. Therefore, the examination did not comply with the requirements in Correia, 28 Vet. App. at 168. Accordingly, to ensure compliance with the May 2019 remand directives and that the record reflects the current severity of the Veteran’s lumbar spine disability, a remand is required for a VA back examination. See Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for a neurological disorder of the right lower extremity is remanded. Pursuant to the May 2019 remand instructions, the Veteran was afforded a VA examination for her bilateral lower extremity radiculopathy in December 2019 at the time her service-connected lumbar spine disability was evaluated. The Board finds that the opinion with regard to the right lower extremity radiculopathy associated with this VA examination is inadequate. On VA examination in December 2019, the examiner noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy of the right lower extremity. However, a February 2016 VA treatment record shows that an electromyography study revealed mild chronic radiculopathy at the L5 nerve root on the right. Thus, the February 2016 record clearly notated and establishes the condition. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the existence of a current disability may be satisfied when a claimant has a disability at the time a claim for compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim). Therefore, there is a diagnosis shown during the claim period. The Board concludes that a remand is necessary because despite the lack of finding of a neurological disorder of the right lower extremity on the December 2019 VA examination, there was a diagnosis related to such during the claim period. See id. Thus, a new VA opinion is warranted. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record herself. 2. After obtaining any outstanding records, return the claims file to the examiner who performed the December 2019 VA back examination. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the December 2019 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must provide an opinion as to whether any diagnosed neurological disorder of the right lower extremity is at least as likely as not related to an in-service injury, event, or disease. It is not sufficient to state that no disability was shown on any current VA examination, to include the December 2019 VA examination. The examiner is to specifically address the diagnosis of mild chronic radiculopathy at the L5 nerve root on the right in 2016. The examiner must also opine whether it is at least as likely as not that any diagnosed neurological disorder of the right lower extremity during the claim period was caused or aggravated by the service-connected lumbar spine or foot disorders. In consideration of all of the Veteran’s statements and reports and all pertinent medical records, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that her neurological disorder of the right lower extremity was either caused or aggravated beyond the natural progression by the Veteran’s service-connected lumbar spine or foot disorders. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Then, schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of her service-connected lumbar spine disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner should provide all information required for rating purposes, to specifically include range of motion of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing. Further, the examiner must indicate if movement is limited by pain, and if so, at what point. The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts he is unable to perform range of motion testing due to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran’s ordinary activity, including his ability to work. The examiner should determine whether the Veteran’s range of motion results from the December 2019 VA examination would have been reduced if tested in both weight-bearing and non-weight-bearing. To the examiner’s best ability, the additional range of motion loss should be described in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran’s functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (CONTINUED ON NEXT PAGE) 4. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.