Citation Nr: 21063271 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-62 667 DATE: October 13, 2021 REMANDED Entitlement to a rating in excess of 20 percent, from July 29, 2014, to October 27, 2019, and in excess of 40 percent thereafter, for a lumbosacral strain and intervertebral disc syndrome (IVDS), is remanded. Entitlement to an initial rating of 10 percent, from August 27, 2013, to October 28, 2019, and in excess of 40 percent thereafter, for radiculopathy of the left lower extremity, sciatic nerve, is remanded. Entitlement to an initial rating of 10 percent, from July 29, 2014, to October 28, 2019, and in excess of 40 percent thereafter, for radiculopathy of the right lower extremity, sciatic nerve, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1984 to August 2005. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board granted a rating of 30 percent, for chronic headaches effective September 19, 2014, and remanded the issue of entitlement to a rating in excess of 20 percent for degenerative disc disease strain with lumbosacral strain. In June 2020, the Board denied a rating in excess of 20 percent, from July 29, 2014, to October 27, 2019, and in excess of 60 percent thereafter, for a lumbosacral strain and IVDS. The Veteran appealed the Board's denial of a rating in excess of 20 percent, from July 29, 2014, to October 27, 2019, and in excess of 60 percent thereafter, for a lumbosacral strain and IVDS to the United States Court of Appeals for Veterans Claims (Court or CAVC). In May 2021, the Court granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of Veterans Affairs (Parties), vacated the June 2020 Board decision insofar as it denied a rating in excess of 20 percent, from July 29, 2014, to October 27, 2019, and in excess of 60 percent thereafter, for a lumbosacral strain and IVDS, and remanded that matter to the Board for compliance with the JMR instructions. The Parties to the JMR agreed that the Board should address: (1) whether it has jurisdiction to address the appropriate ratings for the Veteran's left and right lower extremity radiculopathy, and if so, it should adjudicate the issues accordingly; (2) the adequacy of the June 2015 VA examination report and determine whether it is adequate for rating purposes; and (3) whether the October 2019 VA examination report is adequate for rating purposes, and whether it substantially complies with the Board's December 2018 remand order. See JMPR at 2-3. Moreover, the Parties agreed that the Board failed to adequately address why October 2019 was the appropriate date for the increased rating for the Veteran's back disability. See JMPR at 3. In this regard, the Parties noted that the Veteran's increased rating was based on reports of bedrest over the previous 12 months; and as such, the Board should have addressed whether an increased rating was warranted for the 12-month period prior to the VA examination. Id. The Board notes that the Veteran initially appealed the claim of entitlement to a rating in excess of 20 percent, from July 29, 2014, to October 27, 2019, and in excess of 60 percent thereafter, for a lumbosacral strain and IVDS to CAVC. However, during the period between the June 2020 Board decision and the May 2021 CAVC remand, the RO found clear and unmistakable error with the 60 percent portion of the grant. The RO found that "[the information regarding incapacitating episodes was provided by the Veteran alone and was not documented by medical evidence or the examiner [,] therefore, should not have been used. The general rating formula for the spine should have been used which results in a lesser 40 percent evaluation. 38 C.F.R. § 4.71a; 38 C.F.R. § 4.14; III.iv.4.A.5.b.; III.iv.4.A.5.a." Accordingly, the Board has framed the claim (as noted on the above-titled page) as such. After the RO effectively reduced the Veteran's rating for that period, the Board notes the Veteran did not appeal the reduction. Moreover, the Board notes that rating reduction claims are separate from increased ratings claims. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). At the outset, the Board notes that the Veteran does not have a separate claim for right and left lower extremity radiculopathy. In Chavis, the Court held that if the issue of entitlement to an increased rating for radiculopathy is determined to be within the scope of the claim for an increased rating for a spinal disability on appeal, the Board has jurisdiction to address the ratings for associated radiculopathy without requiring a separate notice of disagreement as to the radiculopathy ratings. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021). Therefore, the Board finds that it has jurisdiction to adjudicate the radiculopathy claims. The Board notes that after the issuance of the CAVC remand, several lay statements were submitted on the Veteran's behalf regarding his back and right and left lower extremity radiculopathy claims. Accordingly, these issues must be remanded in order for an examiner to opine on them, as it relates to the severity of the Veteran's service-connected back and right and left lower extremity radicular disabilities. Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Obtain any outstanding pertinent private treatment records. 3. Obtain an examination to address the nature and severity of the Veteran's spine disability. (a.) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in non-weight-bearing. 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 is specifically asked to address the following: (b.) Considering the Veteran's reported history, please provide an opinion describing functional impairment of the Veteran's spine condition, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. Please consider the Veteran's statements as to the frequency and severity of his flare-ups as well as the lay statement submitted on his behalf and received by VA on July 16, 2021. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his 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. K. A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.