Citation Nr: 21073141 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-28 062 DATE: December 7, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent from November 1, 2012, to July 9, 2021, and in excess of 40 percent from July 9, 2021, for service connected left lower extremity radiculopathy, is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to September 13, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1976 to November 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a subsequent March 2016 rating decision, the Regional Office (RO) changed the Veteran's original rating for the evaluation of his degenerative disc disease of the lumbosacral spine with radiculopathy of the left leg from a single 40 percent evaluation to individual ratings for the Veteran's back disability and bilateral radiculopathy in the lower extremities. At this, time as explained below, the Board finds that remand is warranted to obtain an adequate examination in compliance with prior Board remand directives. 1. Entitlement to an increased rating in excess of 20 percent since November 1, 2012, and a rating in excess of 40 percent from July 9, 2021 for service connected left lower extremity radiculopathy, is remanded. The matter previously appeared before the Board in October 2018 and last in May 2021, at which time the issue was remanded for further development. The October 2018 Board remand noted that the May 2017 private back Disability Benefits Questionnaire (DBQ) indicated symptoms much more severe than the most recent VA back examination of August 2012. The May 2021 Board remand noted that the VA May 2019 back examination was inconsistent with the record, as severe numbness of the left lower extremity was reported earlier in the examination report, but the examiner later indicated that the left lower extremity was not affected in determining the level of severity of the symptom. Further, the Board noted that the November 2020 peripheral nerves examination reported no numbness. Additionally, the Board found that the November 2020 peripheral nerves examination report did not address whether the Veteran has flare-ups despite the Veteran's reports of severe flare-ups. As such, the Board found the examinations inadequate, and the matter was returned to the RO to obtain an adequate examination. Specifically, the Board directed the RO to obtain an examination in which the examiner: 1) provided a full description of the disability and report of all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria; 2) attempt to elicit information regarding the severity, frequency, and duration of any radiculopathy flare-ups and identify any functional loss during flare-ups and if it is not possible to provide a specific measurement based on direct observation, provide an estimate of the additional functional impairment due to flare-ups based on the other evidence of record and the Veteran's statements; and 3) provide a retrospective medical opinion, to the extent possible, assessing the progression and severity of the Veteran's left lower extremity radiculopathy, for the period beginning November 1, 2012. The Veteran underwent an in-person peripheral nerves examination in July 2021. However, the July 2021 examiner failed to provide an adequate retrospective opinion regarding the severity of the Veteran's disability for the entirety of the appeal period. Instead, the examiner only noted that "the Veteran is SC [service connected] for left lower extremity L5-21 radiculopathy from November 1, 2012" and that "since 2012, the Veteran's radiculopathy has progressed and is currently more severe and symptomatic, as noted in the DBQ of which the specific nerve affected is the left sciatic nerve." Also, the examiner did not provide any information regarding the severity, frequency, and duration of any radiculopathy flare-ups nor identify any functional loss during flare-ups. The Board may accept an examiner's failure to provide an opinion as to an estimation when it is clear that the examiner has considered all procurable and assembled data before coming to the conclusion and the examiner must explain the basis for the conclusion. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Here, the examiner failed to indicate whether consideration was given to determine whether an estimation as to the functional loss during flare-ups may be provided. Id. Moreover, the examiner did not describe the disability in sufficient detail, so that the Board's evaluation of the claimed disability will be a fully informed one, since November 1, 2012 in dictating the retrospective opinion. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Hence, the Board finds that the examination is inadequate. As such, remand is warranted to obtain an adequate examination in compliance with prior Board remands. 2. Entitlement to a TDIU rating due to service-connected disabilities, prior to September 13, 2018 is remanded. The Board finds that further development is necessary for the claim for a TDIU rating prior to September 13, 2018. Further, the mater is inextricably intertwined with the above remanded claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Obtain any outstanding relevant VA medical records and private treatment records and associate them with the claims file. 2. In order to comply with the earlier remands, forward the claims file to the examiner that provided the July 2021 VA peripheral nerves examination, or an appropriate clinician to obtain an addendum opinion. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. If upon review of the claims file, the examiner determines that an in-person examination is necessary, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left lower extremity radiculopathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any radiculopathy flare-ups and identify any functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate of the additional functional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner is also directed to provide a retrospective medical opinion, to the extent possible, assessing the progression and severity of the Veteran's left lower extremity radiculopathy, for the period beginning November 1, 2012. The examiner should address the relevant medical evidence of record, to include VA treatment records, May 2017 DBQ, and VA examinations dated August2012, May 2019, November 2020 and July 2021. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. A complete rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). (Continued on the next page) 3. Undertake any additional development deemed necessary for the TDIU claim, to include scheduling the Veteran for appropriate VA examinations to assess the functional impact, if any, of the Veteran's service-connected disabilities on his ability to perform activities of daily living and occupational activities. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, Associate 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.