Citation Nr: 21074774 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-51 815 DATE: December 16, 2021 REMANDED Entitlement to increases in the staged ratings assigned for intervertebral disc syndrome (IVDS) (currently rated 10 percent prior to February 13, 2020, 20 percent prior to April 27, 2021, and 40 percent thereafter) is remanded. Entitlement to an initial evaluation in excess of 10 percent for right ankle sprain is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity sciatic radiculopathy associated with IVDS is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity sciatic radiculopathy associated with IVDS is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity femoral radiculopathy associated with IVDS is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity femoral radiculopathy associated with IVDS is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2007 to August 2007 and from May 2009 to June 2010, with additional periods of reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony before the Board in March 2020; a transcript of the hearing is in the record. These matters were remanded in April 2020 and September 2020. A June 2020 rating decision increased the Veteran's rating for his IVDS to 20 percent, effective February 13, 2020. A May 2021 rating decision granted a 40 percent rating for IVDS, effective April 27, 2021. As neither rating constitutes a full grant of the benefits sought on appeal, this claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the Board notes that service connection for bilateral lower extremity radiculopathy was granted throughout the course of the appeal. Although not separately challenged by the Veteran, the Board has jurisdiction to address these issues as they are considered part of an increased rating for the lumbar spine disability on appeal. See Chavis v. McDonough, 34 Vet. App. 1 (2019). As an initial matter, the record shows that the Veteran has received treatment for the disabilities on appeal at a number of private facilities. The April 2020 Board remand asked that he complete a VA Form 21-4142 for such treatment records. To date, the Veteran has not replied, and such records remain outstanding. However, the record also shows that some private treatment records have been scanned into Vista Imaging. See October 2014, July 2020, and August 2020 VA treatment records. The Board is not able to access records scanned into Vista Imaging and a remand is unfortunately required to obtain them. Since these matters are being remanded anyway, the Veteran is given another opportunity to identify such relevant private treatment records that will assist in the adjudication of his claim. 1. Entitlement to increases in the staged ratings assigned for IVDS (currently rated 10 percent prior to February 13, 2020, 20 percent prior to April 27, 2021, and 40 percent thereafter) is remanded. 2. Entitlement to an initial evaluation in excess of 10 percent for residual of right ankle sprain is remanded. The Veteran has undergone several VA examinations, most recently in April 2021. Even though the prior examinations discuss range of motion measurements, none of the VA examinations of record provide such measurement results in weight-bearing and nonweight-bearing circumstances or specifically identify the exact point where pain begins during range of motion testing for the Veteran's back and right ankle. See Correia v. McDonald, 28 Vet. App. 158, 165-170 (2016). Additionally, while the September 2020 Board remand emphasized the need for the examiner to indicate where pain begins during range of motion testing, such information was not provided. This information is crucial in determining whether an increased rating is warranted for either disability on appeal. Accordingly, remand is necessary for new VA examinations to obtain such information. 3. Entitlement to a rating in excess of 20 percent for left slower extremity sciatic radiculopathy associated with IVDS is remanded. 4. Entitlement to a rating in excess of 10 percent for right lower extremity sciatic radiculopathy associated with IVDS is remanded. 5. Entitlement to a rating in excess of 10 percent for left lower extremity femoral radiculopathy associated with IVDS is remanded. 6. Entitlement to a rating in excess of 10 percent for right lower extremity femoral radiculopathy associated with IVDS is remanded. The matter of entitlement to increased ratings for lower extremity radiculopathy is inextricably intertwined with the Veteran's claim for an increased rating for IVDS, which is being remanded; accordingly, these issues must be remanded as well. The matters are REMANDED for the following action: 1. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 2. Obtain copies of VA treatment records from March 2021 to the present. Additionally, all records stored in Vista Imaging must be made available for inclusion in the Veteran's claim file. 3. Then, arrange for an orthopedic examination of the Veteran (or telehealth interview) to assess the current severity of his service-connected IVDS and right ankle disability, to include a retrospective opinion to the extent possible. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. (a) Range of motion measurements should be included for active and passive motion in both weight-bearing and nonweight-bearing circumstances for both (i) the present time and (ii) for the period from September 2013, if feasible. The Board emphasizes that if pain is noted, the point in the range of motion at which pain starts should be clearly noted. (b) If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran, to include the period from September 2013. (If the Veteran is not experiencing a flare up at the time of the examination, the examiner should ask the Veteran to describe the frequency, severity, duration, and type of symptoms experienced during flare ups and the examiner should provide an opinion based on that information.) If such opinion cannot be provided, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. (d) At any time during the appeal period, did the Veteran's IVDS or right ankle disability have the functional equivalent of ankylosis due to the inability to perform normal working movements of the body, including as due to pain? (e) Finally, a full neurological examination shall also be conducted for a report on the current severity of the Veteran's radiculopathy, along with a report on whether there are any other neurological abnormalities resulting from his service-connected IVDS and/or right ankle disability. The examiner is asked to provide an opinion, from review of the records, as to when the Veteran's right lower extremity sciatic radiculopathy and bilateral lower extremity femoral radiculopathy first manifested. (CONTINUED ON NEXT PAGE) 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.