Citation Nr: 21070510
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 16-31 069
DATE: November 24, 2021

REMANDED

Entitlement to a disability rating more than 20 percent for chronic lumbosacral strain with early degenerative disease of the L5-S1 region is remanded.

Entitlement to a disability rating more than 10 percent for right lower extremity radiculopathy associated with chronic lumbosacral strain with early degenerative disease of the L5-S1 region from October 2, 2019 is remanded.

Entitlement to a separate disability rating for right lower extremity radiculopathy associated with chronic lumbosacral strain with early degenerative disease of the L5-S1 region prior to October 2, 2019 is remanded.

REASONS FOR REMAND

The Veteran had active service from July 1987 to March 1992.  These issues are on appeal from a June 2015 rating decision.

In July 2020, the Board of Veterans' Appeals (Board) denied the Veteran's increased rating claim for his service-connected lumbar spine disability and awarded a separate 10 percent rating for right lower extremity radiculopathy associated with the lumbar spine disability from October 2, 2019.  The Veteran appealed the Board's denial of the lumbar spine disability claim as well as the assignment of the 10 percent rating for the right lower extremity radiculopathy from October 2, 2019 and whether a separate rating for the right lower extremity radiculopathy was warranted prior to October 2, 2019 to the United States Court of Appeals for Veterans Claims (Court).  In June 2021, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (JMPR).  An Order of the Court dated June 2021 granted the motion, vacated in part the Board's July 2020 decision, and remanded the case to the Board.  

Higher evaluations for chronic lumbosacral strain with early degenerative disease of the L5-S1 region and right lower extremity radiculopathy associated with chronic lumbosacral strain with early degenerative disease of the L5-S1 region 

The parties to the JMPR agreed that the Board did not provide an adequate statement of reasons or bases insofar as it did not address whether the duty to assist was satisfied in light of evidence of potentially outstanding treatment records.  Specifically, the record reflected that in February 2015, the Veteran reported receiving private treatment for his back at Gazvini Spine Center.  He also reported private chiropractic treatment to his VA providers in June 2016 but did not disclose the name of the provider.  The parties agreed that as the Board did not address the Veteran's report of treatment at the Gazvini Spine Center in the context of the duty to assist, it statement of reasons or bases was inadequate and remand was required.  

As indicated above, the Veteran has reported private treatment for his back during the period under consideration, and there is no indication that an attempt has been made to obtain these records and indeed, these records have not been associated with the claims folder.  Therefore, the Board finds that remand is required to obtain outstanding private treatment records, to include those identified in the above-referenced JMPR. 

The matters are REMANDED for the following action:

1. Request the Veteran to provide authorization to obtain any outstanding, relevant medical treatment records, to include records from the Gazvini Spine Center as well as treatment reported to VA providers in June 2016.  After securing the necessary authorization, these records should be requested.  If any records are not available, the Veteran should be notified of such.

2. Review the claims file to ensure that the foregoing requested development is completed and arrange for any additional development indicated.  If the benefits sought remain denied, issue an appropriate supplemental statement of the case to the Veteran and his representative.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Arif Syed, 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.