Citation Nr: 21069031 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 04-28 398A DATE: November 17, 2021 REMANDED Entitlement to an initial evaluation in excess of 40 percent for degenerative osteoarthritis of the lumbar spine is remanded. Entitlement to an initial evaluation in excess of 10 percent for right lower extremity sciatic nerve radiculopathy prior to September 6, 2016, is remanded. Entitlement to an initial evaluation in excess of 20 percent for right lower extremity sciatic nerve radiculopathy on or after September 6, 2016, is remanded. Entitlement to an initial evaluation in excess of 10 percent for left lower extremity sciatic nerve radiculopathy prior to September 6, 2016, is remanded. Entitlement to an initial evaluation in excess of 20 percent for left lower extremity sciatic nerve radiculopathy on or after September 6, 2016, is remanded. Entitlement to an initial evaluation in excess of 20 percent for right lower extremity femoral nerve peripheral neuropathy is remanded. Entitlement to an initial evaluation in excess of 20 percent for left lower extremity femoral nerve peripheral neuropathy is remanded. Entitlement to an effective date prior to May 9, 2011, for the grant of service connection for right lower extremity sciatic nerve radiculopathy is remanded. Entitlement to an effective date prior to May 9, 2011, for the grant of service connection for left lower extremity sciatic nerve radiculopathy is remanded. Entitlement to an effective date prior to September 6, 2016, for the grant of service connection for right lower extremity femoral nerve peripheral neuropathy is remanded. Entitlement to an effective date prior to September 6, 2016, for the grant of service connection for left lower extremity femoral nerve peripheral neuropathy is remanded. Entitlement to an effective date prior to September 6, 2016, for the award of special monthly compensation based on the housebound rate is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to July 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from Rating Decisions issued in November 2004, February 2015, and February 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In the November 2004 Rating Decision, the RO granted entitlement to service connection for degenerative osteoarthritis of the lumbar spine and assigned a 40 percent evaluation effective May 21, 2001. The Veteran submitted a timely Notice of Disagreement with the evaluation for this disability. In an August 2018 decision, the Board denied entitlement to a rating in excess of 40 percent for degenerative osteoarthritis of the lumbar spine, while also remanding the issues of entitlement to service connection for hypertension and Parkinson's disease, as well as entitlement to a total disability rating based upon individual unemployability (TDIU), for additional development. However, the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, the Court granted a Joint Motion for Remand (Joint Motion), which vacated the Board's decision with respect to the increased rating issue and remanded the appeal to the Board for additional consideration. In the February 2015 Rating Decision, the RO granted service connection for right and left lower extremity sciatic nerve radiculopathy and assigned separate 10 percent evaluations effective from May 9, 2011. The Veteran submitted a timely Notice of Disagreement with the evaluations and effective dates assigned for these disabilities. In the February 2017 Rating Decision, the RO increased the evaluations assigned for the service-connected right and left lower extremity sciatic nerve radiculopathy to 20 percent effective from September 6, 2016, and assigned new 20 percent disability evaluations for impairment of the femoral nerves effective that date. Nevertheless, the issues remain in appellate status, as the maximum schedular ratings have not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993). These issues were last remanded by the Board for additional development in July 2019 under a different Docket Number, 17-19 921. However, the appeal stream for these issues was subsequently merged into the older appeal stream for the Veteran's lumbar spine claim under Docket Number 04-28 398A. The Board notes that a decision under Docket Number 04-28 398A issued on August 25, 2021, by another Veterans Law Judge remanded the issues of entitlement to service connection for service connection for hypertension and Parkinson's disease, as well as entitlement to a TDIU, for additional development, but did not acknowledge any of the pending issues addressed in this decision. As the issues remanded in the August 21, 2021, Board decision are still in Remand status, they are not currently before the Board. 1. Entitlement to a higher evaluation for degenerative osteoarthritis of the lumbar spine The Veteran seeks entitlement to a higher evaluation for his service-connected degenerative osteoarthritis of the lumbar spine. As discussed above, in an August 2018 decision, the Board denied entitlement to a rating in excess of 40 percent for degenerative osteoarthritis of the lumbar spine. However, the Veteran appealed this denial to the Court. In a June 2020 Order, the Court granted a Joint Motion which vacated the Board's decision with respect to the increased rating issue and remanded the appeal to the Board for additional consideration. The June 2020 Joint Motion found that remand was required because the Board did not adequately consider whether the Veteran's functional losses due to his degenerative osteoarthritis of the lumbar spine were equivalent to unfavorable ankylosis or incapacitating episodes of intervertebral disc syndrome so as to warrant a higher rating. Specifically, the Joint Motion indicated that the Board did not consider whether evidence in a December 2000 private neurosurgeon's correspondence, a May 2011 VA Brain and Spinal Cord examination report, a February 2015 VA opinion, and a September 2016 VA Back (Thoracolumbar Spine) examination report as to his physical limitations constituted evidence of functional loss equivalent to unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome. The Board emphasizes that the Veteran was most recently provided with a VA Back (Thoracolumbar Spine) examination in September 2016, over five years ago. As the Veteran is alleging degenerative osteoarthritis of the lumbar spine equivalent to unfavorable ankylosis or incapacitating episodes of intervertebral disc syndrome, the Board finds that the current evidence of record does not adequately reveal the present state of the Veteran's service-connected disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability . . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). As such, on remand, the Veteran should be provided with another VA Back (Thoracolumbar Spine) examination to determine the current severity of his service-connected degenerative osteoarthritis of the lumbar spine. 2. Entitlement to earlier effective dates for grants of service connection for right lower extremity sciatic nerve radiculopathy, left lower extremity sciatic nerve radiculopathy, right lower extremity femoral nerve peripheral neuropathy, and left lower extremity femoral nerve peripheral neuropathy; entitlement to an earlier effective date for the award of special monthly compensation based on the housebound rate; and entitlement to increased ratings for right lower extremity sciatic nerve radiculopathy, left lower extremity sciatic nerve radiculopathy, right lower extremity femoral nerve peripheral neuropathy, and left lower extremity femoral nerve peripheral neuropathy These issues were previously before the Board in July 2019, at which time they were remanded for additional development. Specifically, the Board found that a March 2019 VA examination did not provide sufficient detail for rating purposes. For example, the examiner provided no discussion of the Veteran's medical history pertaining to his service-connected right and left lower extremity disabilities. Moreover, the examiner did not elicit any information from the Veteran regarding the manifestations, if any, of his service-connected lower extremity disabilities. Therefore, given the complex medical nature of the case, the Board found that a remand was necessary to obtain a VA medical opinion to clarify when the Veteran's service-connected sciatic nerve radiculopathy and femoral nerve peripheral neuropathy first manifested. A review of the record reveals that, pursuant to the Board's July 2019 Remand instructions, an "Exam Scheduling Request" was created in September 2019 in order to schedule the Veteran for examinations for "Neurological - Cranial/Peripheral Nerves" and "Neurological other System." Later that month, internal memoranda revealed that several inquiries were sent to the RO requesting clarifications relating to the examinations. However, there are no correspondences addressed to the Veteran showing that he was notified of the date, time, and/or location of any scheduled examinations during this time period. Rather, another internal memorandum was added to the claims file on October 3, 2019, indicating that the requested examinations were canceled due to the Veteran's failure to report to the examinations. However, in correspondence dated in June 2020, the Veteran's attorney indicated that neither he nor the Veteran ever received any notice of a scheduled October 2019 VA examination, and requested that the examinations be rescheduled as soon as possible. Here, given the relatively short period of time between the examination clarification requests and the purported date of the scheduled examination, the lack of any documents in the claims file demonstrating that the Veteran was actually notified of the scheduled examination, and the Veteran's consistent record of attending other examinations, the Board finds that he should be rescheduled for the examinations requested in the Board's July 2019 Remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to address the current severity of his service-connected lumbar spine disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's spine disability under the VA rating criteria. Range of motion of the spine should be reported in degrees, noting by comparison the normal range of motion. The examiner should also test and report the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If there is pain on range of motion, then the examiner must state at which point pain began. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due the spine disability alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, then 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). The examiner is asked to consider the Veteran's lay statements of record regarding the functional impact of his lumbar spine disability, to include addressing whether he has lumbar spine ankylosis, or the functional equivalent of ankylosis or incapacitating episodes of intervertebral disc syndrome at any period on appeal (i.e., from May 2001 to the present). 2. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right and left lower extremity sciatic nerve radiculopathy and femoral nerve peripheral neuropathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's service connected right and left lower extremity sciatic nerve radiculopathy and femoral nerve peripheral neuropathy. In particular, the examiner should identify the affected nerve or nerve group involved. He or she should specifically indicate whether the sciatic and femoral nerves are affected. For each nerve or nerve group affected, the examiner should indicate whether the impairment is mild, moderate, moderately severe, or severe. He or she should also state whether there is incomplete or complete paralysis. To the extent possible, the examiner should distinguish the symptomatology attributable to each nerve. If the examiner is unable to distinguish the symptoms attributed to each nerve, the examiner should so state in the report. The examiner should also provide an opinion as to when the Veteran first manifested right and left lower extremity sciatic nerve radiculopathy and femoral nerve peripheral neuropathy. The post-service medical evidence documents numerous complaints and findings pertaining to the right and left lower extremities, but it is unclear whether any affected nerve can be identified during those times. For example: (1) In 1993, the Veteran reported having right lower extremity weakness and numbness. See, e.g., August 1993 and September 1993 VA medical records. (2) An August 1995 Social Security Administration (SSA) examination report noted that that a review of systems showed weakness of the extremities, but straight leg and sensory tests were negative. (3) A February 1998 VA examination report noted that straight leg raise testing to 45 degrees caused back pain, bilaterally. (4) A June 2000 private medical record noted that the Veteran had radicular pain that was clinically related to lumbar spine radiculopathy. (5) An October 2000 private magnetic resonance imaging (MRI) report noted an impression of mild degenerative disc disease with bony overgrowth and slight narrowing of the right and left neuroforamen at L5-S1, slightly more prominent on the right side where there appeared to be some slight impression on the exiting L5 nerve root. (6) A November 2000 private medical record noted that straight leg raise testing exacerbated the Veteran's pain in his back, bilaterally. (7) In 2001 and 2002, the Veteran reported having pain, numbness, and weakness in his legs. See, e.g., private medical records dated in May 2001 and September 2002. (8) A February 2003 VA examination report noted that straight leg raising at 60 degrees did not cause low back pain, bilaterally. (9) In 2003, private medical records noted assessments of lumbar radiculopathy. See, e.g., February 2003 and April 2003 private medical records. (10) In an August 2004 VA spine examination, the Veteran reported having numbness and weakness of his legs. (11) In a November 2008 VA examination, the examiner diagnosed the Veteran with mild peripheral neuropathy of the lower extremities; spondylosis at L5-S1 with vacuum phenomena and slight anterolisthesis at L5 on S1 with facet arthropathy on the right greater than the left; a slight wedge angulation of the L3 vertebral body that may reflect a minor endplate compression fracture; and spondylosis at L1-2 and L2-3. (12) A November 2008 private electromyography report noted that findings suggested, but were not diagnostic of mild peripheral neuropathy of the lower extremities. (13) In 2009 and 2010, VA and private medical records documented complaints and assessments of neuropathy and lumbar radiculopathy. See, e.g., May 2009 VA primary care record (noting some right sided neuropathy) and December 2010 private medical record (noting an assessment of lumbar radiculopathy). (14) A May 2011 VA imaging report noted mild to moderated degenerative disc disease of the lumbar spine at L5-S1; mild changes of spondylosis from L2 to L5; and minimal subluxation of L5 over S1. (15) In a February 2015 VA medical opinion, the examiner provided a discussion regarding the sciatic nerve and opined that the Veteran's bilateral lower extremity neuropathy was due to his service-connected disability. (16) In a September 2016 VA examination, the examiner diagnosed the Veteran with right and left lower extremity radiculopathy of the sciatic and femoral nerves. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. (Continued on the next page) 3. Notice of all scheduled examinations should be mailed to the Veteran and his attorney, with copies of such notice associated with the claims file. Following the examinations, review the examination reports to ensure that they are in compliance with this Remand. If the reports are deficient in any manner, then the AOJ should implement corrective procedures. 4. After completing the actions above, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, then the Veteran and his attorney should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.