Citation Nr: 21068343 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-53 964 DATE: November 10, 2021 REMANDED Entitlement to increases in the staged ratings assigned for a low back disability (currently rated 10 percent disabling prior to August 14, 2020, and 40 percent thereafter) is remanded. Entitlement to a separate compensable rating prior to March 4, 2020, and in excess of 20 percent thereafter, for right lower extremity radiculopathy is remanded. Entitlement to a separate compensable rating prior to August 14, 2020, and in excess of 20 percent thereafter, for left lower extremity radiculopathy is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2007 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran presented testimony before the undersigned Veterans Law Judge; a transcript is in the record. In March 2020, the Board determined the Veteran raised a claim for TDIU as part and parcel of the rating issue for the low back disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). These issues were remanded for further development in March 2020. In a June 2020 rating decision, the RO granted a separate 20 percent rating for right lower extremity radiculopathy, effective March 4, 2020. In an August 2020 rating decision, the RO granted a separate 20 percent rating for left lower extremity radiculopathy and a 40 percent rating for the Veteran's low back disability, each effective August 14, 2020. As these additional ratings do not constitute a full grant of the benefits sought on appeal, the claim remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In May 2021, this matter was again remanded for additional development. As explained below, another remand is unfortunately required. 1. Entitlement to increases in the staged ratings assigned for a low back disability (currently rated 10 percent disabling prior to August 14, 2020, and 40 percent thereafter) is remanded. 2. Entitlement to a separate compensable rating prior to March 4, 2020, and in excess of 20 percent thereafter, for right lower extremity radiculopathy is remanded. 3. Entitlement to a separate compensable rating prior to August 14, 2020, and in excess of 20 percent thereafter, for left lower extremity radiculopathy is remanded. 4. Entitlement to a TDIU is remanded. Unfortunately, the medical evidence associated with the record appears to be incomplete. The record includes documents from Dr. L. G.-M. that were provided by the Veteran. The most recent document provided is from September 27, 2010; that record indicated a follow-up appointment scheduled for 21 days later. Accordingly, it appears that additional records from this provider remain outstanding. Additionally, the record also contains a September 2007 MRI result from OpenSided MRI of Indianapolis that was ordered by Dr. S.R. Additional records from this facility/provider are not included in the file. Because private treatment records are likely to contain pertinent information related to the Veteran's claim, they should be obtained. Additionally, the Board's prior remand discussed at great length the importance of an adequate examination (and what was needed for an examination to be adequate) to allow adjudication of the Veteran's claim. As a quick summary, VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, and despite the prior in-depth discussion of what was required, the VA spine examinations of record do not fully comport with the requirements of Correia. Particularly, while the July 2021 VA examiner noted pain "on all movements," she did not note the point in the range of motion in which pain began. Thus, remand is necessary for a new VA spine examination. In conducting these measurements, the examiner should note not only whether pain on motion is present, but if present, wherein the range of motion the pain sets in and whether that pain causes functional loss. Knowing where pain sets in is particularly important in this case where functional impairment has been noted. Correia, supra. The issues of increased ratings for radiculopathy of the bilateral lower extremities are deferred pending the additional development. The matter of entitlement to TDIU is inextricably intertwined with the Veteran's other remanded issues; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified, to include records from Dr. L. G.-M. and Dr. S.R. 2. Then, schedule the Veteran for a VA examination to evaluate the current level of severity of the low back disability on appeal, to include a retrospective opinion to the extent possible. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. (a) Range of motion measurements should be included for active and passive motion in both weight-bearing and nonweight-bearing circumstances for both (i) the present time and (ii) for the period from January 2014, if feasible. The Board again emphasizes that if pain is noted, the point in the range of motion at which pain starts should be clearly noted. If pain is noted, the examiner should describe the functional loss or additional limitation of range of motion. (b) The examiner should specifically obtain information from the Veteran regarding the severity of his back disability prior to August 14, 2020, as compared to his current severity. (c) If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran, to include the period from January 2014. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. (d) The examiner should also comment on whether there is any form of ankylosis. In addition, the examiner should state the total duration of incapacitating episodes of intervertebral disc syndrome over the past 12 months. (e) If the examiner is unable to provide a retrospective opinion, he or she must provide a detailed explanation for why an opinion cannot be rendered; a rationale based on the fact that the examiner did not previously examine the Veteran will not be deemed adequate. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. Once again, the examiner should interview the Veteran and cannot rely on the fact that the examiner did not previously examine the Veteran. (f) The examiner should also identify any neurological findings in the left and right lower extremities related to the service-connected back disability for the entire appeal period (January 2014), and fully describe the extent and severity of those symptoms. Specifically, the examiner should indicate, to the extent possible, the earliest date radiculopathy or neuropathy of the right and left lower extremities was shown, identify the specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of each nerve (that is, whether it is mild, moderate, moderately severe, or severe in nature). 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.