Citation Nr: 21073095 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-14 543 DATE: December 7, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve from March 24, 2011, to August 6, 2012, is remanded. Entitlement to an initial disability rating in excess of 20 percent for left leg radiculopathy of the sciatic nerve since August 7, 2012, is remanded. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity radiculopathy of the femoral nerve is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with adjustment disorder, mixed anxiety and depressed mood is remanded. Entitlement to an initial disability rating in excess of 10 percent for lumbar spine degenerative disc and joint disease status post L5-S1 fusion is remanded. Entitlement to service connection for surgical scars of the low back, secondary to the service-connected lumbar spine disability, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the service-connected disabilities prior to April 24, 2013, is remanded. REASONS FOR REMAND The Veteran had active military service from August 2005 to March 2011. These issues are on appeal from July 2012 and September 2013 rating decisions. In December 2018, the Veteran testified at a Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's claims file. In April 2019 and September 2020, the Board remanded these issues for further development. 1. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve from March 24, 2011, to August 6, 2012, is remanded. 2. Entitlement to an initial disability rating in excess of 20 percent for left leg radiculopathy of the sciatic nerve since August 7, 2012, is remanded. 3. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity radiculopathy of the femoral nerve is remanded. 4. Entitlement to service connection for right lower extremity radiculopathy is remanded. 5. Entitlement to an initial disability rating in excess of 50 percent for PTSD with adjustment disorder, mixed anxiety and depressed mood is remanded. 6. Entitlement to an initial disability rating in excess of 10 percent for lumbar spine degenerative disc and joint disease status post L5-S1 fusion is remanded. 7. Entitlement to service connection for surgical scars of the low back, secondary to the service-connected lumbar spine disability, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding these issues. In April 2019 and September 2020, the Board remanded these claims for VA examinations to be scheduled. Upon remand, examinations were scheduled in May 2021, but the examination scheduling requests state that the examinations were cancelled at the Veteran's request. There is no notation in the Veteran's claims file of him cancelling the examinations. The May 2021 Supplemental Statement of the Case indicates that the Veteran failed to report for the examinations. However, the record does not contain any notification letters sent to the Veteran informing him of the date, time, and place of the examinations. As such, there is no indication that the Veteran was provided the requisite notice for the examinations. Another remand is required for the Veteran to be properly notified of his examinations and for these notifications to be documented in the claims file. Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. Entitlement to a TDIU prior to April 24, 2013, is remanded. Finally, because a decision on the remanded issues could significantly impact a decision on the TDIU issue, the issues are inextricably intertwined. A remand of the TDIU claim is required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for the examinations listed below. Any party responsible for scheduling the Veteran's VA examinations should confirm that his correct address is used for any notification letters. The notification letter(s) must include the date, time, and place of the upcoming examinations and this letter(s) must be documented in the Veteran's claims file. 2. Schedule the Veteran for a VA examination to determine the nature, severity, and cause of his bilateral lower extremity radiculopathy. The record, to include a copy of this Remand, must be made available to and be thoroughly reviewed by the examiner. Any indicated evaluations, studies, and tests should be accomplished. The examiner is asked to respond to the following: (a) The examiner should identify all current diagnoses of neurological disorders, to specifically include right and lower extremity radiculopathy, present since service. The examiner should consider the documented reports in and since service of radiation into the right lower extremity. (b) For each currently diagnosed right lower extremity neurological disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability) that such disorder is related to his military service. (c) For each currently diagnosed right lower extremity neurological disorder, the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such disorder is caused or aggravated by the Veteran's service-connected low back disability. If aggravation is found, the examiner should state whether there was a medically ascertainable increase in disability regardless of permanence. (d) For each currently diagnosed neurological disorder of the lower extremities, the examiner should address the evidence of the severity of the radiculopathy diagnoses and should discuss whether, and at what point in time, the level of severity changed. A clearly stated rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected PTSD. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be accomplished, and all symptomatology should be identified. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD, as well as the impact that such has on his social and occupational functioning. In addressing such inquiries, the examiner should take into consideration all of the evidence of record, to include VA examination reports and any pertinent VA treatment records, as well as the Veteran's lay statements, accepted medical principles, and objective medical findings. All examination findings/testing results, along with a complete, clearly stated rationale for any opinion offered, must be provided. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected lumbar spine degenerative disc and joint disease status post L5-S1 fusion. The claims file, to include a copy of this Remand, must be available to and be thoroughly reviewed by the VA examiner. Any indicated evaluations, studies, and tests should be accomplished, and all symptomatology associated with the Veteran's low back should be identified. In the examination report, in addition to setting forth all other pertinent findings, the examiner must address the following: (a) The examiner must test the Veteran's range of motion on active and passive motion, on weight- bearing and non-weight-bearing, if possible and record the results for each test. (b) If there is evidence of pain on motion, the examiner MUST indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran's disability. The examiner should state whether the examination is taking place during a period of flare-up. The examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including these items: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his low back and/or after repeated use over time. 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 and after repeated use over time. (d) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation whether based on lack of expertise, insufficient information, or unprocured testing of the individual examiner. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. 5. Schedule the Veteran for a VA examination to determine the nature and cause of his low back surgical scars. The claims file, to include a copy of this Remand, must be available to and be thoroughly reviewed by the VA examiner. Any indicated evaluations, studies, and tests should be accomplished, and all associated symptomatology should be identified. The examiner is asked to respond to the following: (a) Identify any surgical scars of the low back present since service. (b) Provide an opinion as to whether the Veteran's surgical scars of the low back are at least as likely as not (a probability of 50 percent or greater) related to the Veteran's active service, to include as secondary to his service-connected low back disability. The examiner should consider the Veteran's December 2018 Board hearing testimony that his scars are very painful. See Board hearing transcript, p. 11. A clearly stated rationale for all opinions must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to April 24, 2013. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Watkins, 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.