Citation Nr: 21070802 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 09-31 799 DATE: November 26, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for thoracolumbar degenerative disc disease with lumbar strain prior to May 31, 2013; and in excess of 20 percent for the periods from May 31, 2013, to February 12, 2014, and from May 1, 2014 to the present, is remanded. Entitlement to an initial rating in excess of 40 percent for right lower extremity radiculopathy effective January 28, 2013, is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2001 to June 2005, and from October 2007 to July 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 Rating Decision from a Department of Veterans Affairs (VA) Regional Office (RO). In February 2014, the Veteran underwent surgery on his lumbar spine. As a consequence, he was awarded a temporary total rating for his lumbar spine effective February 12, 2014, to May 1, 2014, after which he was again assigned a 20 percent rating. The Veteran has not indicated any disagreement with the period of time for which he was granted a temporary total evaluation, and therefore, this appeal concerns his schedular evaluations. See Locklear v. Shinseki, 24 Vet. App. 311 (2011). The Veteran requested a hearing before a Veterans Law Judge in connection with his appeal. A hearing was scheduled for April 2017, but the Veteran did not appear. The Board notes that the March 2017 notification regarding the hearing was returned as undeliverable; however, there is no indication in the record that the Veteran informed VA of a new address and the notification letter was sent to his last known address of record. Hyson v. Brown, 5 Vet. App. 262 (1993) (discussing a claimant's duty to inform VA of his or her current address). Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (e). The Veteran seeks entitlement to increased ratings for thoracolumbar degenerative disc disease with lumbar strain, right lower extremity radiculopathy, and left lower extremity radiculopathy, as well as entitlement to a TDIU. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. Relevant to all claims on appeal, the Board's January 2018 Remand directed that an examiner conduct all indicated tests and studies, to include range of motion studies. The joints involved were to be tested in both active and passive motion, and in weight-bearing and nonweight-bearing, as per Correia v. McDonald, 28 Vet. App. 158, 168 (2016). If the examiner was unable to conduct the required testing or concluded that the required testing was not necessary in this case, then he or she was instructed to clearly explain why that was so. Pursuant to the Board's January 2018 Remand directives, the Veteran was provided with a VA Back (Thoracolumbar Spine) Conditions examination in December 2019. At that time, initial range of motion findings were provided as well as estimated ranges of motion for movement after repeated use over time and during flare-ups. However, with respect to the Correia factors, the examiner simply provided: Is opposing jt nl? no Is pain at rest: yes w/o functional loss Is pain w/passive ROM: yes : no functional loss Is pain w/weight bearing/ Yes : w/functional loss due to pain In particular, although the examiner indicated that there was additional functional loss due to pain with weightbearing, no additional range of motion findings (expressed in degrees of motion lost) were provided and no explanation was provided as to why further range of motion testing was not required, as explicitly requested in the Board's January 2018 Remand. See Stegall v. West, 11 Vet. App. 268 (1998) (compliance with the Board's remand directives is not discretionary and the Board errs as a matter of law when it fails to ensure remand compliance). As such, the matters on appeal must again be remanded so that an adequate VA examination can be obtained in compliance with the Board's previous Remand instructions. Additionally, a review of the record suggests that the Veteran receives regular, ongoing care for his service-connected thoracolumbar degenerative disc disease with lumbar strain, right lower extremity radiculopathy, and left lower extremity radiculopathy through the VA Southern Arizona Healthcare System in Tucson, Arizona. However, the most recent VA treatment records associated with the claims file are dated in September 2019, over two years ago. Given the Veteran's complaints of progressively worsening symptomatology, the Board finds that all VA treatment records dated from September 2019 to the present should be obtained and associated with the claims file. See 38 U.S.C. § 5103A (b); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain the Veteran's VA treatment records from the VA Southern Arizona Healthcare System in Tucson, Arizona, and any associated outpatient clinics, from September 2019 to the present, and associate these records with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. After the above development has been completed, schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his lumbar spine degenerative disc disease and bilateral lower extremity radiculopathies. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present, as well as any associated neurologic problems. The examiner should conduct all indicated tests and studies, to include range of motion studies. Specifically, the examiner should estimate the amount, in degrees, of range of motion lost due to pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion experienced by the Veteran. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, then the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on the next page) Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, then the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the requisite knowledge or training). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal remains denied, then furnish the Veteran and his representative with Supplemental Statement of the Case and return the case to the Board. 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.