Citation Nr: 21063757 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-24 048 DATE: October 15, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine herniated disc is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 2009 to June 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Referral As explained below, in his May 2017 formal appeal to the Board, the Veteran expressed his request to appeal the disability rating for his right knee and claimed a loss of sleep. However, he did not express his disagreement in his March 2015 Notice of Disagreement (NOD). The record does not reflect that the Veteran has yet filed a claim for service connection of sleep impairment. These matters are referred to the RO for appropriate action. 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine herniated disc is remanded. The matter first appeared before the Board in October 2019, at which time the issue was remanded for further development, specifically to obtain a retrospective opinion regarding the back disability at the time of a March 2014 VA examination. In this regard, the Veteran was last afforded a VA examination for his lumbar spine disability in March 2014. Thereafter, as requested in the October 2019 Board Remand, the RO obtained an addendum opinion in January 2020 that addressed limitations in his range of motion due to flare ups, as of the time of the March 2014 examination. Although VA examinations do not necessarily go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board's evaluation of the claimed disability to be a fully formed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). There has been no current severity level assessment of the condition since March 2014. Moreover, the Veteran's lay statements submitted subsequent to the March 2014 VA examination suggest that his disability has gradually gotten worse. Hence, a new VA examination is the appropriate remedy to ascertain the current severity of the Veteran's lumbar spine disability. Moreover, it is unclear whether all of the Veteran's pertinent VA treatment records have been associated with the claims file. The Board notes the Veteran's report, on his August 2013 claim, that he received treatment for his back at the VA outpatient facilities in Pasco. The March 2017 Statement of the Case (SOC) indicates that there were no VA treatment records located at the Tampa or San Diego VA medical facilities. The claims file, however, does not memorialize that a request was made to obtain any records from the Pasco VA medical facilities, nor was notice provided to the Veteran that the records were unavailable. In light of the March 2017 SOC noting that there are no VA treatment records, the Board is unable to determine whether the duty to assist has been satisfied. 38 C.F.R. § 3.159. Hence, remand is warranted to obtain any outstanding treatment records. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity is remanded. In the Veteran's March 2015 Notice of Disagreement (NOD) (VA Form 21-0958), he expressed his request to appeal the evaluation rating of the lumbar spine disability as well as the rating assigned for radiculopathy of the right lower extremity. Specifically, he expressed disagreement with the rating assigned for his "lower lumbar/ sciatica L5-S1," and went on to describe having pain in his back that radiates down his right leg. The RO did not address the rating assigned for the Veteran's right lower extremity radiculopathy in the March 2017 SOC. Hence, remand is warranted for the RO to readjudicate the issue and issue an SOC on the matter. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records for the Veteran, including from Pasco VAOPC. If the requested records are unavailable, the Veteran and his representative should be notified. 38 C.F.R. § 3.159. 2. After the above development is complete, schedule the Veteran for examinations with an appropriate clinician to assess the severity level of his lumbar spine herniated disc. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. After examining the Veteran, evaluating the current nature and severity of his lumbar spine disability, reviewing the Veteran's full history by conducting a complete review of the claims file (including all available lay statements, medical treatment records, and examination reports), the examiner must: (a.) Test and document the range of motion (ROM) for the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after-repetitive-use basis. For each ROM, the examining clinician is asked to explicitly identify the degree in which pain is first evidenced by the Veteran's visible behavior. If unable to conduct the required testing or the examiner concludes that the required testing is not necessary in this case, the examiner must provide a thorough explanation. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination is present. (b.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how any such determination was made. If it is not possible to provide a specific ROM measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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. (c.) The examiner must indicate whether the Veteran has ankylosis of the lumbar spine. If ankylosis is not diagnosed then the examiner must answer whether there is evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. (d.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability and comment on the effect of these disabilities on any occupational functioning and activities of daily living. (e.) Utilize the Veteran's medical records and lay reports concerning the history of his lumbar spine disability symptoms and impairment to provide RETROSPECTIVE OPINIONS regarding the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups of the Veteran's lumbar spine disability at the time of the March 2014 VA examination. Any impairment should be assessed in terms of limitation to ROM, including on (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non-weight-bearing. Specifically, the examiner should, to the extent possible and considering all procurable and ascertainable data, provide estimates of: i. The additional functional loss to the Veteran's lumbar spine from flare-ups or after repeated use over time at the time of the March 2014 VA examination. ii. Any additional limitation due to repetitive use over time or flare-ups should be assessed in terms of the degree of additional ROM loss. The Board emphasizes that, in providing the requested retrospective opinion, the examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of ROM, including the effect of the Veteran's lumbar spine disability on any occupational functioning and activities of daily living. iii. The examiner must indicate whether the Veteran has ankylosis of the lumbar spine. If ankylosis is not diagnosed then the examiner must answer whether there is evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Send the Veteran and his representative a SOC that addresses the issue of entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy, with instructions on how to appeal the issue if he so desires. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.