Citation Nr: 21002280 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 09-42 315 DATE: January 13, 2021 REMAND Entitlement to an initial rating higher than 20 percent disabling for a cervical spine disorder is remanded. Entitlement to a higher rating for left upper extremity radiculopathy as a neurologic complication of cervical spine Intervertebral Disc Syndrome (IVDS) rated as 20 percent disabling effective July 24, 2020 is remanded. Entitlement to an initial rating higher than 10 percent disabling for a thoracolumbar spine disorder for the period prior to May 19, 2010 is remanded. Entitlement to a rating higher than 40 percent for a thoracolumbar spine disorder for the period beginning May 19, 2010 is remanded. Entitlement to a higher rating for left lower extremity radiculopathy of the sciatic nerve as a neurologic complication of lumbar spine IVDS rated as 10 percent disabling prior to July 24, 2020 and 20 percent thereafter is remanded. Entitlement to a higher rating for left lower extremity radiculopathy of the femoral nerve as a neurologic complication of lumbar spine IVDS rated as 20 percent disabling since July 24, 2020 is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU). REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from October 1994 to July 2004. The Board notes that the Veteran was discharged under other than honorable conditions, and the character of his service from June 2002 to July 2004 constitutes a bar to entitlement to VA benefits for that time period. See April 2008 Administrative Decision; 38 C.F.R. § 3.12. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) of Montgomery, Alabama (hereinafter, Agency of Original Jurisdiction (AOJ)). This appeal was previously before the Board in May 2020, at which time it was remanded for further evidentiary development. Specifically, the Board instructed to AOJ to obtain updated examinations to determine the nature and severity of the Veteran’s cervical spine and lumbar spine disabilities including all neurologic complications. The General Formula for Rating Injuries and Diseases of the Spine instructs the rater to evaluate objective neurologic abnormalities “separately, under an appropriate diagnostic code.” 38 C.F.R. § 4.71a, General Formula for Rating Injuries and Diseases of the Spine, Note (1). Once that analysis is completed, the rater is to consider whether a higher alternative rating may be awarded based upon the duration of incapacitating episodes of IVDS. 38 C.F.R. § 4.71a, DC 5243. The Board finds that the evaluating the appropriate rating and effective date of award for any neurologic complications of IVDS are part of the issues necessary for a final decision in assigning the appropriate rating for the Veteran’s IVDS. The issue of entitlement to TDIU was recently reasonably raised as part of the appeal. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In May 2020, the Board’s remand specifically identified the Veteran’s 2018 testimony regarding numbness and pain symptoms in the fingers, arms, legs and feet as well as private medical records noting bowel incontinence after lumbar fusion surgery in August 2004 and report of bowel and bladder problems in February 2018 records as raising potential neurologic complications of IVDS. The AOJ obtained an examination in July 2020 which diagnosed left upper extremity radiculopathy as a neurologic complication of cervical spine IVDS and left femoral radiculopathy. The AOJ has provided compensation effective to the date of the VA examination although the Board previously noted subjective symptoms being present as early as 2018. The AOJ eventually obtained examinations for potential bowel and bladder incontinence in October 2020. The VA examiner noted that there was no objective evidence of bowel or urine incontinence diagnosis in treatment records, and that the Veteran first complained of these symptoms during a July 2020 examination. This is factually incorrect as the Board’s prior remand cited specific private medical records raising these issues. Overall, the Board does not find compliance with its previous remand directives and remands this case for further development. Accordingly, the matters are REMANDED for the following: 1. Associate with the claims folder updated VA treatment records. 2. Schedule the Veteran for an examination to determine the current severity of his neurologic complications of thoracolumbar and cervical spine IVDS. The examiner should identify and evaluate any chronic neurologic manifestations of his spine disorders. In doing so, the examiner must address the Veteran’s January 2018 testimony regarding numbness and pain in his fingers, arms, legs, and feet. The examiner must clarify whether the Veteran is reporting neurologic symptoms in the right upper and/or lower extremity and, to the extent possible, determine the onset of any chronic neurologic impairment of the upper or lower extremities. The examiner must also address the Veteran’s symptomology of bowel and bladder incontinence, and determine whether that symptomology is related to the Veteran’s thoracolumbar and/or cervical spine disorders. All appropriate examinations and tests should be conducted. In answering this question, the examiner must specifically address the following: • August 2004 private medical letter noting some bowel incontinence after lumbar fusion surgery; • February 2018 private medical records finding no explanation for the Veteran’s bowel and bladder problems; and • the Veteran’s January 2018 testimony relating his bowel and bladder symptoms to his spine disorders. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Orie, Chinyere 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.