Citation Nr: 21002637 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-59 657 DATE: January 14, 2021 REMANDED Entitlement to an increased evaluation for degenerative joint disease of the lumbar spine, rated 10 percent from January 29, 2018 and 20 percent from August 1, 2018, is remanded. Entitlement to an increased evaluation for degenerative disc disease of the cervical spine, rated 10 percent, to include whether separate compensable ratings are warranted for any associated cervical radiculopathy of the upper extremities, is remanded. Entitlement to an increased evaluation for radiculopathy of right lower extremity associated with degenerative joint disease of the lumbar spine, rated 10 percent, is remanded. Entitlement to an increased evaluation for radiculopathy of left lower extremity associated with degenerative joint disease of the lumbar spine, rated 10 percent, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1989 to February 1993 and from October 1998 to April 1999. The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) in August 2020. The VLJ clarified the issues on appeal as those listed above; clarified the concept of increased ratings; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims and inquired as to the existence of potential outstanding records. A substantial amount of additional evidence has been added to the record by the Veteran since the hearing. We note that the record reflects that the Veteran has multiple claims at multiple stages of development with VA. This has created a somewhat complex procedural situation. Accordingly, it was specifically clarified at the hearing that the issues listed above are the only ones associated with this appeal. This was discussed with the Veteran and her representative at the beginning of the hearing, and it was referenced throughout the hearing. The parties were in agreement. Thus, we will review these four issues only at this time. Parenthetically, we note that as service connection for unspecified anxiety disorder has been granted and a 70 percent rating assigned, it appears that the claim of service connection for insomnia characterized as a psychiatric disorder is moot and is no longer on appeal. 1. Entitlement to an increased evaluation for degenerative joint disease of the lumbar spine, rated 10 percent from January 29, 2018 and 20 percent from August 1, 2018, is remanded. 2. Entitlement to an increased evaluation for degenerative disc disease of the cervical spine, rated 10 percent, to include whether separate compensable ratings are warranted for any associated cervical radiculopathy of the upper extremities, is remanded. 3. Entitlement to an increased evaluation for radiculopathy of right lower extremity associated with degenerative joint disease of the lumbar spine, rated 10 percent, is remanded. 4. Entitlement to an increased evaluation for radiculopathy of left lower extremity associated with degenerative joint disease of the lumbar spine, rated 10 percent, is remanded. Remand is required for new examinations and to obtain VA and identified non-VA treatment records. The Veteran testified that her cervical and lumbar spine disorders, including associated radiculopathies, have worsened. She reports upper extremity neurological manifestations of her cervical spine condition. Her back is severely limited and she uses an assistance dog for mobility. She explained that she has undergone many epidural injections in her spine due to the worsening pain. She reported she is a pharmacist. She had just undergone a Dep-Medrol injection, which she explained was an anti-inflammatory shot, but this was for her knee. She explained that her lumbar spine condition had fallen through the cracks treatment-wise because of the COVID situation. She had been getting epidural blocks into the spine up until the pandemic happened. She reported she was now overdue for her spine injections, but the VA would not give her another one because the steroid injection that for the knee was too much. She was scheduled to restart epidurals in the lower lumbar spine in October 2020. She was also going to get injections into her shoulder, steroids injections. The last examinations appear to be over a year old. Critically, since that time, the Veteran has indicated in her detailed testimony that her disabilities have worsened and are far more disabling than currently rated. In light of the Veteran’s statements that her disability picture has worsened since her last examinations, another examination must be afforded to accurately assess her current level of disability as to all of these disabilities. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) The Veteran should be provided an opportunity to report for VA examinations. The AOJ should address and evaluate all of the manifestations of these service-connected disabilities, to include any radiculopathy of the upper extremities related to the cervical spine disorder. Also, updated VA treatment records and all government-held medical records should be obtained. The AOJ should also assist the Veteran in obtaining all of the non-VA records identified treatment records for these conditions. It is not entirely clear if all of the records she identified have been obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2020 through the present. 2. Ask the Veteran to submit, or authorize VA to obtain, and non-VA treatment records related to the claims on appeal for any records that are not yet of record. If such records are not found, the claims file must be clearly documented to that effect and she should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of her service-connected lumbar and cervical spine disabilities. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Any upper extremity cervical radiculopathy should be identified. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (assuming such is appropriate to the joint involved). If it is not possible to provide a specific measurement without speculation, the examiner must state the reason. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state the reason. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of her service-connected radiculopathy of right and left lower extremity associated with degenerative joint disease of the lumbar spine. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The degree of any upper extremity radiculopathy related to the service-connected cervical spine disability should be noted. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, to include whether a separate rating is warranted for any upper extremity radiculopathy related to the cervical spine disability. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.