Citation Nr: 21002324 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 08-08 653 DATE: January 13, 2021 REMANDED An initial rating higher than 20 percent for a lumbar spine disability, prior to June 5, 2017. A rating higher than 20 percent for radiculopathy of the left lower extremity. A total disability rating based on individual unemployability (TDIU) prior to December 1, 2015.   REASONS FOR REMAND The Veteran served on active duty from November 1976 to November 1979. The case is on appeal from September 2007 and January 2010 rating decisions. In December 2015, the Veteran testified at a Board hearing. In a January 2019 decision, the Board granted a separate 20 percent rating for radiculopathy of the left lower extremity for the entire rating period on appeal and denied a compensable rating for bilateral hearing loss and a rating higher than 40 percent for a low back disability. The issues with respect to a rating higher than 20 percent for the back disability prior to June 5, 2017, and a rating higher than 20 percent for radiculopathy of the left lower extremity, along with a TDIU, were remanded for additional development. In an April 2019 decision, the Board granted service connection for a left knee disability. 1. An initial rating higher than 20 percent for a lumbar spine disability, prior to June 5, 2017. Pursuant to the Board’s January 2019 remand, the Veteran was afforded a VA examination in July 2019 for a retrospective opinion as to the severity of the Veteran’s lumbar spine disability prior to June 5, 2017, to include an estimate in the amount in degrees of range of motion lost during flare ups. Although the examiner opined that there did not appear to be forward flexion of 30 degrees or less prior to June 5, 2017, range of motion lost during flare ups was not addressed. As such, the opinion is not completely adequate. The Board notes that although an addendum was obtained in January 2020, the opinion merely states that the request for an opinion with respect to flare ups should be resubmitted to the July 2019 examiner, once the examiner became available. Thus, the Veteran should be scheduled for a new VA examination to assess the severity of the service-connected lumbar spine disability prior to June 5, 2017, to include complying with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 2. A rating higher than 20 percent for radiculopathy of the left lower extremity. As above, pursuant to the Board’s January 2019 remand, the Veteran was afforded an examination in July 2019 for an opinion as to the severity of the Veteran’s radiculopathy of the left lower extremity, which is rated as moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. The VA examiner opined that the Veteran did not have radiculopathy of the left lower extremity, noting that the Veteran’s post laminectomy-type syndrome with residual decreased vibration sensation and pin prick sensation in the left foot L5 nerve root distribution reflected on VA examination in April 2016 was inconsistent with a diagnosis of radiculopathy. However, in addition to decreased sensation in the left foot L5 nerve root distribution noted on the April 2016 VA peripheral nerves examination, both the April 2016 and June 2017 VA back examination reports reflect radiculopathy involving L4/L5/S1/S2/S3 nerve roots. As such, the opinion is not completely adequate. Thus, a new VA examination is warranted. In view of the remand, VA treatment records since the issuance of the September 2020 supplemental statement of the case (SSOC) should be obtained. 3. A TDIU prior to December 1, 2015. The issue of a TDIU, prior to December 1, 2015 remains on appeal. Although an October 2017 letter from the Director, Compensation Service, reflects an opinion that a TDIU is not warranted on an extraschedular basis prior to December 1, 2015, the appeal for a TDIU is intertwined with the remanded issues because the outcome of those issues may impact whether a TDIU is assignable on a schedular basis, prior to December 1, 2015. Thus, the issue is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain VA treatment records since September 2020 and associate them with the Veteran’s electronic record. 2. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to assess the severity of the service-connected radiculopathy of the left lower extremity, expressed in terms of moderate, moderately severe, or severe incomplete paralysis, or, complete paralysis (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). In addition, a retrospective assessment/opinion should be provided as to the severity of the lumbar spine disability prior to June 5, 2017. (Continued on the next page)   The opinion should estimate for the period prior to June 5, 2017, the amount in degrees of range of motion lost due to pain in weight-bearing and nonweight-bearing positions, and on both active and passive motion. The opinion should also estimate the amount in degrees of range of motion lost due to flare-ups for that time period. Rationale for all opinions expressed should be provided. If the reviewing clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.