Citation Nr: 21069703 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-62 752 DATE: November 19, 2021 REMANDED Entitlement to an initial evaluation in excess of 20 percent prior to October 19, 2016, and in excess of 40 percent thereafter, for a lumbar spine disability is remanded. Entitlement to an initial evaluation in excess of 10 percent prior to October 19, 2016, and in excess of 20 percent thereafter for radiculopathy of the right lower extremity is remanded. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a TDIU prior to May 26, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from May 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 and March 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2019. This case was previously before the Board in September 2020 and April 2021, when it was remanded for development. The case has been returned to the Board for further appellate review. 1. Entitlement to an initial evaluation in excess of 20 percent prior to October 19, 2016, and in excess of 40 percent thereafter, for a lumbar spine disability is remanded. The Veteran's VA treatment records indicate that he was authorized to receive private chiropractic care, and the Veteran submitted two disability benefits questionnaires, completed in October 2016 and in January 2021 by private chiropractors. Although VA requested that the Veteran provide authorization to obtain records from the January 2021 chiropractor, to which the Veteran did not respond, VA has not requested authorizations to obtain records from the October 2016 chiropractor, nor has VA solicited information from the Veteran about any other chiropractors who might have treated him during the period on appeal. A remand is necessary to attempt to obtain these relevant private treatment records. 2. Entitlement to an initial evaluation in excess of 10 percent prior to October 19, 2016, and in excess of 20 percent thereafter for radiculopathy of the right lower extremity is remanded. 3. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity is remanded. The Veteran's VA treatment records reflect complaints of bowel and bladder urge incontinence beginning in approximately late 2013. In the two private disability benefits questionnaires noted above, the Veteran also reported occasional bowel and bladder incontinence, which the private chiropractors noted as additional neurological symptoms associated with the low back disability. However, a July 2018 note in the VA treatment records indicates that the bladder incontinence is not clearly of spinal etiology, and an August 2018 electrodiagnostic test returned normal results. On remand, the RO should obtain an opinion discussing the reports of bowel and bladder incontinence in the record, and determining whether these symptoms are at least as likely not associated with the service-connected radiculopathy, and, if not, whether these symptoms may be clearly distinguished from the symptoms of the service-connected radiculopathy. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (where effects of a service-connected disability and non-service-connected disability cannot be distinguished, they will all be attributed to the service-connected disability). 4. Entitlement to a TDIU prior to May 26, 2015 is remanded. The TDIU issue is intertwined with the issue remanded above and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for his lumbar spine disability that is not already of record, including any records from any private chiropractors. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Then, forward the claims file to an appropriate clinician to determine whether the Veteran's incontinence symptoms are at least as likely as not related to the Veteran's lower extremity radiculopathy and/or lumbar spine disability. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the reports of bowel and bladder incontinence noted in record since approximately 2013 are symptoms of the service-connected lower extremity radiculopathy or lumbar spine disability. In providing this opinion, the examiner should specifically address the significance of the October 2016 and January 2021 disability benefits questionnaires as well as the August 2018 electrodiagnostic testing. If the examiner opines that the incontinence problems reported in the record are not associated with the service-connected lower extremity radiculopathy and/or the lumbar spine disability, the examiner should further opine whether these symptoms may be clearly distinguished from the symptoms of those service-connected disabilities. If so, the examiner must clearly delineate which symptoms are due to nonservice-connected disability and which symptoms are due to the service-connected lower extremity radiculopathy or lumbar spine disability. All opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.