Citation Nr: 21069106 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 11-00 267A DATE: November 17, 2021 REMANDED Entitlement to increases in the staged (20 percent prior to February 29, 2016, and 60 percent from that date) ratings for lumbar spine degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS) (a low back disability), is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from May 1971 to May 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision which, in relevant part, granted service connection for a low back disability, effective November 23, 2009 and rated 20 percent. In August 2015, the case was remanded for additional development. [The August 2015 Board decision also remanded the matters of entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy and entitlement to a total disability rating based on individual unemployability (TDIU).] The procedural history of the instant matter is somewhat complicated and is outlined here for clarity. Following the August 2015 remand, a March 2016 rating decision increased the rating for the low back disability from 20 to 40 percent, effective February 29, 2016. At that time, the VA Regional Office (RO) referred the remanded matters to the Director of the Compensation and Pension service for extraschedular consideration. In a June 2016 administrative decision, the Director found that an increased rating on an extraschedular basis was warranted for the low back disability, but not for the right lower extremity radiculopathy or the TDIU claim. An August 2016 rating decision increased the rating for the low back disability from 40 to 60 percent, effective February 29, 2016, and granted a TDIU rating effective February 29, 2016. The decision explained that the low back rating "takes into consideration your symptoms of radiculopathy, right lower extremity, which is no longer separately evaluated." The corresponding Codesheet shows that the 10 percent rating for right lower extremity radiculopathy was terminated on August 9, 2016. An October 2017 Board decision denied increases in the staged (20 percent prior to February 29, 2016, and 60 percent from that date) ratings assigned for the low back disability; granted an increased (to 20 percent) rating for right lower extremity radiculopathy from November 23, 2009 to August 9, 2016 (the date a separate rating in effect for right lower extremity radiculopathy ended); and, denied a TDIU rating prior to February 29, 2016. The Veteran appealed the October 2017 Board decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a November 2018 Joint Motion for Partial Remand (JMPR) by the parties. The parties agreed that the CAVC should set aside and vacate the Board's decision to the extent it denied increases in staged (20 percent prior to February 29, 2016, and 60 percent from that date) ratings assigned for the low back disability, denied an initial rating in excess of 20 percent for right lower extremity radiculopathy, and denied a TDIU rating prior to February 29, 2016. A November 2018 CAVC Order remanded the matters for compliance with JMPR instructions. A June 2019 Board decision increased the rating for right lower extremity radiculopathy to 60 percent throughout (to include a separate rating from August 9, 2016), granted a TDIU rating throughout, and remanded the matter of a rating in excess of 20 percent for the low back disability from November 23, 2009 to February 29, 2016 for additional development. The remand did not address/identify the matter of the rating for the low back disability from February 29, 2016; such was also not addressed in the August 2021 supplemental statement of the case (SSOC). Upon review of the procedural history, the Board finds that the matter of the rating for the low back disability from February 29, 2016 remains on appeal, as that period was remanded by the CAVC per the JMPR, and the Veteran has not indicated that he wishes to withdraw his appeal pertaining to that stage of the rating. Accordingly, the issue remaining before the Board is entitlement to increases in the staged (20 percent prior to February 29, 2016, and 60 percent from that date) ratings assigned for the low back disability; the issue has been so recharacterized on page 1. Entitlement to increases in the staged (20 percent prior to February 29, 2016, and 60 percent from that date) ratings assigned for a low back disability The Board remanded (a portion of) this matter in June 2019 for an advisory retrospective medical opinion regarding any additional functional impairment of the Veteran's low back disability on repeated use over time or during flare-ups for the period prior to February 29, 2016. [Notably, the parties to the November 2018 JMPR agreed that remand for the Board to address whether the prior VA examinations of record adequately addressed whether there was additional functional loss following repeated use over time was warranted.] In January and July 2021, the Veteran reported that he did not want to report for an in-person examination, and requested that VA evaluate his claim based upon the evidence of record only. In August 2021, a VA (fee basis) physician reviewed the record and provided an opinion regarding functional loss (including in degrees of motion loss) during repetitive use and flare-ups. Upon review of the record, remand to obtain outstanding records of private medical treatment that may be pertinent to the claim is necessary. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). VA (CAPRI) medical records associated with the file in July 2021 suggest that records from several private providers remain outstanding. Notably, the record shows that the Veteran has been treated by a non-VA primary care physician, Dr. L.R. for his back pain throughout the appeal period. See VA treatment records dated November 19, 2010, March 22, 2011, October 19, 2019, and April 23, 2021. The record also shows that he "sought chiropractic treatment for many years from several different providers" during the period under consideration. See VA treatment records dated March 22, 2011, April 10, 2012, January 28, 2016, May 3, 2018, and November 1, 2018. [Notably, the February 2016 VA spine examination report notes the Veteran's report of "chiropractic treatment as recent as last week," but the examiner was unable to locate such records.] Complete, outstanding records of private treatment for the Veteran's low back disability must be sought, as they are material evidence in this matter. [If private treatment records pertaining to the low back disability prior to February 29, 2016 are received, an addendum opinion which considers such records will be necessary.] The matter is REMANDED for the following: 1. Secure for the record updated (to the present, any not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for his low back disability. 2. Ask the Veteran to provide identifying information (and authorizations for VA to obtain records of) regarding all private evaluations and treatment he has received for his low back disability (records of which are not already in the record), including specifically records from Dr. L.R., chiropractor Dr. V., and all other chiropractors (as reported in VA treatment records). Secure all such records for association with the claims file. Afford him ample (as provided by law) opportunity to respond to the request. 3. If (and only if) new private treatment records are obtained for the period from November 23, 2009 to February 29, 2016, return the Veteran's record to the August 2021 consulting provider for further review and an addendum medical opinion regarding whether the records show that there was additional functional impairment of the Veteran's low back disability (other than that described in the August 2021 opinion) on repeated use or during flare-ups (in terms of the degree of additional range of motion loss, if possible) during the period from November 23, 2009 to February 29, 2016. [If the August 2021 provider is unavailable, the record should be forwarded to another appropriate clinician for the opinion sought.] 4. Thereafter, review the record, arrange for any further development indicated, and readjudicate the claim. If it remains denied, the issue an appropriate SSOC (which addresses both stages of the rating, as indicated), afford the Veteran and his representative opportunity to respond, and return the case to the Board. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.