Citation Nr: 21066293 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 09-06 959 DATE: October 29, 2021 ORDER Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy due to impairment of the sciatic nerve prior to December 10, 2018, an in excess of 20 percent thereafter has been withdrawn. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy due to impairment of the sciatic nerve prior to December 10, 2018, and in excess of 20 percent thereafter has been withdrawn. Entitlement to a rating in excess of 10 percent for partial paralysis of the right femoral nerve, prior to December 10, 2018, and in excess of 20 percent thereafter has been withdrawn. Entitlement to a rating in excess of 10 percent for partial paralysis of the left femoral nerve, prior to December 10, 2018, and in excess of 20 percent thereafter has been withdrawn. REMANDED Entitlement to a disability rating in excess of 40 percent for lumbar spondylosis with spinal stenosis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, prior to December 10, 2018, is remanded. FINDINGS OF FACT 1. In the September 2021 appellant brief, and prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal of the claim of entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy due to impairment of the sciatic nerve prior to December 10, 2018, and in excess of 20 percent thereafter. 2. In the September 2021 appellant brief, and prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal of the claim of entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy due to impairment of the sciatic nerve prior to December 10, 2018, and in excess of 20 percent thereafter. 3. In the September 2021 appellant brief, and prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal of the claim of entitlement to a rating in excess of 10 percent for partial paralysis of the right femoral nerve, prior to December 10, 2018, and in excess of 20 percent thereafter. 4. In the September 2021 appellant brief, and prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal of the claim of entitlement to a rating in excess of 10 percent for partial paralysis of the left femoral nerve, prior to December10, 2018, and in excess of 20 percent thereafter. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy due to impairment of the sciatic nerve prior to December 10, 2018, and in excess of 20 percent thereafter have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the issue of entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy due to impairment of the sciatic nerve prior to December 10, 2018, and in excess of 20 percent thereafter have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of the issue of entitlement to a rating in excess of 10 percent for partial paralysis of the right femoral nerve, prior to December 10, 2018, and in excess of 20 percent thereafter have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for withdrawal of the issue of entitlement to a rating in excess of 10 percent for partial paralysis of the left femoral nerve, prior to December10, 2018, and in excess of 20 percent thereafter have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to August 1974. This matter comes to the Board of Veterans' Appeals (Board) from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2016, in the decision the Board denied entitlement to a rating in excess of 20 percent for lumbar spondylosis, a rating in excess of 10 percent for right lower extremity radiculopathy, and a rating in excess of 10 percent for left lower extremity radiculopathy. The Veteran thereafter appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2018, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) on the grounds that the Board erred by failing to provide the Veteran with an adequate statement of reasons and bases. The case was returned to the Board and a June 2018 Board decision remanded the claims for new VA examinations. The Veteran was afforded new examinations in December 2018. A June 2019 Board decision granted a 40 percent rating for lumbar spondylosis, a 10 percent rating for partial paralysis of the bilateral femoral nerves prior to December 10, 2018, and denied a rating in excess of 40 percent for lumbar spondylosis, a rating in excess of 10 percent prior to December 10, 2018 for bilateral lower extremity radiculopathy due to impairment of the sciatic nerve, a rating in excess of 20 percent as of December 10, 2018 for bilateral lower extremity radiculopathy due to impairment of the sciatic nerve, and a rating in excess of 20 percent as of December 10, 2018 for partial paralysis of the bilateral femoral nerves. The Veteran appealed the June 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion for Partial Remand (JMPR) of the Veteran and the Secretary of Veterans Affairs (the Parties) on the grounds that the Board erred by failing to obtain private treatment records and because the Board did not ensure full compliance with the June 2018 remand instructions, as the December 2018 examiner's opinion did not provide a retrospective opinion on functional loss spanning the entire appeal period. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (explaining that a remand by the Board confers on the claimant a legal right to substantial compliance with the remand order). 1. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy due to impairment of the sciatic nerve prior to December 10, 2018, an in excess of 20 percent thereafter 2. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy due to impairment of the sciatic nerve prior to December 10, 2018, and in excess of 20 percent thereafter 3. Entitlement to a rating in excess of 10 percent for partial paralysis of the right femoral nerve, prior to December 10, 2018, and in excess of 20 percent thereafter 4. Entitlement to a rating in excess of 10 percent for partial paralysis of the left femoral nerve, prior to December 10, 2018, and in excess of 20 percent thereafter The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or the authorized representative. 38 C.F.R. § 20.205. In the September 2021 Appellant's Brief, the Veteran's attorney reported that the Veteran did not want to continue the appeal concerning the issue of entitlement to a rating in excess of 10 percent for bilateral lower extremity radiculopathy due to impairment of the sciatic nerve prior to December 10, 2018, and in excess of 20 percent thereafter; and a rating in excess of 10 percent for partial paralysis of the bilateral femoral nerve, prior to December 10, 2018, and in excess of 20 percent thereafter. Therefore, the Veteran has withdrawn these issues from the appeal. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the issue of entitlement to a rating in excess of 10 percent for bilateral lower extremity radiculopathy due to impairment of the sciatic nerve prior to December 10, 2018, and in excess of 20 percent thereafter; and a rating in excess of 10 percent for partial paralysis of the bilateral femoral nerve, prior to December 10, 2018, and in excess of 20 percent thereafter; and these issues are dismissed. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 40 percent for lumbar spondylosis with spinal stenosis is remanded. As previously noted, the Veteran appealed a June 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2020, the Secretary of VA and a representative of the Veteran filed a Joint Motion for Partial Remand (JMPR). In the JMPR, the parties agreed that the Board failed to obtain private treatment records and did not ensure full compliance with the June 2018 remand instructions, as the December 2018 examiner's opinion did not provide a retrospective opinion on functional loss spanning the entire appeal period. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (explaining that a remand by the Board confers on the claimant a legal right to substantial compliance with the remand order). Therefore, a remand is needed to obtain an adequate retrospective opinion with regards to the Veteran's lumbar spine disability. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, prior to December 10, 2018, is remanded. The issue of entitlement to a TDIU prior to December 10, 2018, is, in part, based on the Veteran's service-connected lumbar spine disability. Thus, as the issue of entitlement to a TDIU is intertwined with the increased rating claim the Veteran's lumbar spine disability, a remand is warranted for the claim for TDIU for the period of March 30, 2007, to December 9, 2018. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. The RO is directed to attempt to obtain the Veteran's private treatment records from the Alaska Native Medical Center. 2. Schedule the Veteran for VA examinations to determine the current severity of his lumbar spine disability. The claims file should be made available to and reviewed by the examiner and the examiner should provide answers to the following questions: a) Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the VA 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 the basis for this decision. b) The examiner should also request the Veteran to identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner's opinion regarding the functional loss the Veteran experiences due to flare-ups from his lumbar spine disability should span the entire length of the claims on appeal. The retrospective portion of the opinion should be based on all the evidence of record including the Veteran's lay information. In providing all of the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.