Citation Nr: 21072186 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-56 880 DATE: December 2, 2021 REMANDED Entitlement to a disability rating in excess of 40 percent for service-connected degenerative arthritis of the lumbar spine with spinal stenosis is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. INTRODUCTION The Veteran served honorably on active duty in the United States Army during the Peacetime and Vietnam Era, from October 1974 to October 1976 and from March 1977 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. During the pendency of this claim, in a December 2019 written statement, the Veteran's representative withdrew representation. As such, the Veteran is now proceeding pro se (i.e., representing himself). On his November 2016 substantive appeal (VA Form 9) the Veteran elected to provide testimony at a live videoconference Board hearing; however, in September 2021 correspondence the Veteran requested withdrawal of his hearing request. Thus, the Veteran's hearing request is hereby withdrawn. The Board finds the issue of entitlement to a separate evaluation for left lower extremity radiculopathy is raised by the record based upon radicular symptoms noted in the December 2015 VA examination and VA treatment records dated December 2016, April 2020, and May 2020. As the Board retains jurisdiction over such issue as being part and parcel of the Veteran's increased rating claim for service-connected degenerative arthritis of the lumbar spine with spinal stenosis (lower back condition), the issue is listed on the title page of this decision and addressed below. 38 C.F.R. § 4.71A, Diagnostic Code (DC) 5242, Note (1). Finally, there remains an outstanding Privacy Act request that has not been fulfilled. Because the claim is being remanded, there is no prejudice to the Veteran in referring his Privacy Act request to the RO for appropriate action. Thus, on remand, the RO must follow procedures for complying with a Privacy Act request. REASONS FOR REMAND Entitlement to a disability rating in excess of 40 percent for service-connected degenerative arthritis of the lumbar spine with spinal stenosis is remanded. The Veteran seeks entitlement to an increased disability rating for service-connected lower back condition. The January 2016 Rating Decision on appeal granted a rating increase from 10 percent to 40 percent effective October 21, 2015; however, the Veteran timely submitted his Notice of Disagreement (NOD) in February 2016 contending that an even higher rating is warranted. When a Veteran claims the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Upon review, the Board observes the Veteran last underwent a VA medical examination addressing his service-connected lower back condition in December 2015. Moreover, the Board observes the Veteran's November 2016 VA Form 9 and VA treatment records dated April 2020 show his symptoms may have worsened since that examination. Therefore, the Veteran should be afforded a VA examination to determine the current severity of his lower back condition. Entitlement to service connection for left lower extremity radiculopathy is remanded. Medical records associated with the Veteran's claims file document multiple reports from the Veteran of radiating pain in his left lower extremity. The December 2015 VA examination report notes the Veteran "developed numbness in his left leg at times in the posterior thigh and calf and tingling in his left foot," and that "a lumbar MRI show[ed] spinal stenosis." The VA examination report indicates the Veteran has left lower extremity radiculopathy involving mild paresthesias and/or dysesthesias and numbness. According to the VA examiner, the Veteran "has a new diagnosis of herniated nucleous [sic] pulposas [sic] at L5-S1 with compression of the S1 nerve root causing mild symptoms of S1 radiculopathy." The examiner noted that herniated nucleus pulposus "is unrelated to lumbar degenerative arthritis" and is most commonly caused by "aging." However, the Board finds the VA examination report inadequate for purposes of determining entitlement to service connection for left lower extremity radiculopathy. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the VA examiner's rationale for the opinion is conclusory and devoid of consideration and discussion of the Veteran's reports regarding such factors as when his left lower extremity radicular symptoms initially manifested and any progression. VA treatment records also report lumbar radiculopathy, but do not provide sufficient detail such that the Board's evaluation will be fully informed. As a result, a VA examination and medical opinion is required to determine if the Veteran's left lower extremity radiculopathy is due to, related to, or otherwise etiologically associated with an in-service injury, event, or illness, or is proximately due to or aggravated by the service-connected lower back disability. The matters are REMANDED for the following action: 1. Pursuant to his July 2021 records request and in accordance with the procedures for complying with a Privacy Act request, provide the Veteran with the requested records. Concurrent with the process of obtaining and providing the requested records, proceed to implement the following remand instructions; do not delay implementing any of the following instructions while waiting to provide the requested records. 2. Schedule the Veteran for an in-person VA examination with a physician possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran's service-connected lower back condition(s) for the entire period on appeal, as well as the nature, severity, and likely etiology of the Veteran's left lower extremity radiculopathy. The examiner must obtain a full history from the Veteran. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology and functional limitations. For the entire period on appeal, all pertinent symptomology and manifestations must be elicited and reported in detail, including when initially manifested and any progression or exacerbations. All indicated studies (e.g., x-rays) must be performed. Based upon a review of all pertinent evidence in the Veteran's claims file including medical treatment and prior examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data addressing: (a.) The full description of the Veteran's service-connected lower back condition(s) and all signs and symptoms necessary for evaluating his disability under the applicable rating criteria (both before and after the February 7, 2021, revisions) including ROM on both active and passive motion, weight-bearing and non-weight-bearing, during flare-ups, and after repetitive use for the entire period on appeal. If there is evidence of pain on motion, the examiner must indicate the degree of ROM at which such pain begins and whether such pain on movement, as well as any weakness, excess fatigability, or incoordination results in additional ROM loss. Regarding reported flare-ups and/or additional functional loss after repetitive use, including over a period of time, the examiner must elicit information from the Veteran regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups and/or repetitive use. In this regard, the examiner must indicate whether, and to what extent, the Veteran's ROM is additionally limited during flare-ups and/or after repetitive use, including over a period of time, expressed in terms of degrees and by way of estimation if necessary. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's left lower extremity radiculopathy is due to, related to, or otherwise etiologically associated with an in-service injury, event, or illness? (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's left lower extremity radiculopathy is proximately due to, related to, or otherwise etiologically associated with or aggravated by his service-connected lower back condition? In offering the above opinion, the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) the December 2015 VA examination report noting left lower extremity radiculopathy; (b.) the Veteran's November 2016 VA Form 9 regarding worsening symptoms; and (c.) April 2020 VA treatment records noting worsening symptoms. A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record and, as warranted, relevant medical literature must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.