Citation Nr: 21076376 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 11-09 861 DATE: December 23, 2021 ORDER The appeal for entitlement to an initial compensable rating prior to February 25, 2011 and in excess of 10 percent thereafter for radiculopathy of the right foot is dismissed. The appeal for entitlement to an initial compensable rating prior to February 25, 2011 and in excess of 10 percent thereafter for radiculopathy of the left foot is dismissed. REMANDED Entitlement to a rating in excess of 20 percent prior to October 23, 2009 and since April 1, 2010 for residuals of low back injury is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected residuals of low back injury, is remanded. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected residuals of low back injury, is remanded. FINDING OF FACT In the June 2013 VA rating decision, the claims for entitlement to service connection for radiculopathy of the right foot and for radiculopathy of the left foot were granted; the Veteran was notified of this action and of his appellate rights but did not file a timely notice of disagreement (NOD) regarding the initial evaluations assigned for these specific disabilities. CONCLUSIONS OF LAW 1. The claim on appeal for entitlement to an initial compensable rating prior to February 25, 2011 and in excess of 10 percent thereafter for radiculopathy of the right foot is not properly on appeal before the Board. 38 C.F.R. §§ 19.20, 19.21 (2020). 2. The claim on appeal for entitlement to an initial compensable rating prior to February 25, 2011 and in excess of 10 percent thereafter for radiculopathy of the left foot is not properly on appeal before the Board. 38 C.F.R. §§ 19.20, 19.21. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1980 to February 1983. In June 2011, the Veteran testified at a videoconference hearing (for the issues of entitlement to a rating in excess of 20 percent for residuals of low back injury and for entitlement to a TDIU) before a Veterans Law Judge (VLJ) who is no longer available. The Veteran was notified by letter in January 2021 that the VLJ who conducted the June 2011 hearing is no longer available and thus was offered the opportunity to have another hearing before a member of the Board. As of this date, there has been no response from the Veteran. Accordingly, the Board assumes the Veteran does not want another hearing and will proceed with these issues on appeal accordingly. In February 2014, the Board dismissed the appeal for entitlement to an extension beyond March 31, 2010 for a temporary total rating based on treatment requiring convalescence for residuals of low back injury. The Board also remanded the issues of entitlement to a rating in excess of 20 percent for residuals of low back injury and for entitlement to a TDIU for additional evidentiary development. These issues have been returned to the Board for appellate review. In December 2015, the Board denied the issues of entitlement to service connection for psychiatric disability and for degenerative disc disease of the cervical spine. In March 2016, the December 2015 Board decision was vacated. In September 2016 and February 2018, the Board remanded these issues for additional evidentiary development, and they have been returned to the Board for appellate review. A private attorney attempted to revoke his representation and withdraw as the Veteran's representative for the issues on appeal in February 2020 after the certification of this appeal in April 2011 and July 2015. The February 2020 written notice was provided to the Board and the Veteran. In October 2021, a notice letter was sent to the private attorney requesting that he submit a proper motion for withdrawal as representative before VA and advising him that if he did not respond within 30 days the Board would assume that he wishes to remain as the Veteran's representative and proceed with the issues on appeal accordingly. The October 2021 notice was sent to the private attorney's most recent address of record. As of this date, there has been no response from the private attorney; therefore, the Board will proceed under the assumption that he wishes to remain as the Veteran's representative. See 38 C.F.R. § 20.6 (2020). 1. Entitlement to an initial compensable rating prior to February 25, 2011 and in excess of 10 percent thereafter for radiculopathy of the right foot 2. Entitlement to an initial compensable rating prior to February 25, 2011 and in excess of 10 percent thereafter for radiculopathy of the left foot In the June 2013 VA rating decision, the claims for entitlement to service connection for radiculopathy of the right foot and for radiculopathy of the left foot were granted; the Veteran was notified of this action and of his appellate rights but did not file a timely NOD regarding the initial evaluations assigned for these specific disabilities. In the February 2014 Board remand, it was also noted that the Veteran has not disagreed with any aspect of the June 2013 VA rating decision for these issues. As of this date, and more than one year from the date of notification of the June 2013 VA rating decision on appeal, a timely NOD identifying these issues on appeal was not obtained and associated with the record. The Board concludes that these claims are not properly on appeal before the Board, thus these appeals are dismissed. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent prior to October 23, 2009 and since April 1, 2010 for residuals of low back injury On September 15, 2006, the Veteran's request for a higher rating for his service-connected residuals of low back injury was obtained and associated with the record. In the March 2008 VA rating decision, the Agency of Original Jurisdiction (AOJ) increased the disability rating from 10 percent to 20 percent disabling effective from September 15, 2006. In the April 2010 VA rating decision, the AOJ assigned a temporary evaluation of 100 percent effective from October 23, 2009 to March 31, 2010 and continued the 20 percent rating effective thereafter from April 1, 2010. Since the 20 percent disability rating is not the maximum rating available prior to October 23, 2009 and since April 1, 2010, the issue has been characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). Pursuant to the February 2014 Board remand, the Veteran was afforded a VA Disability Benefits Questionnaire (DBQ) examination for back (thoracolumbar spine) conditions in July 2015. Since then, review of VA treatment records dated from July 2015 to October 2015 (the most recent of record) shows that in October 2015 the Veteran initially sought treatment at the Lancaster community-based outpatient clinic (CBOC) for chronic low back pain, reported seeking treatment from Dr. T. at the University of Pittsburgh Medical Center, Greentree facility, for chronic pain management, reported previously seeking treatment at a VA facility in Pittsburgh in the past but quit going because he did not like the primary care physician, attended a consultation for physical therapy for chronic low back pain, and underwent an x-ray of the lumbar spine. Moreover, the VA treating physician noted in October 2015 to reviewing private treatment records from Dr. T. dated in August 2015; however, review of the claims file is absent for these identified relevant treatment records. In light of such evidence since the Veteran was last examined in July 2015, additional development is needed to properly adjudicate the appeal. See 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. § 3.159 (2020); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to a TDIU While the Board remands the issue of entitlement to a rating in excess of 20 percent prior to October 23, 2009 and since April 1, 2010 for residuals of low back injury for additional evidentiary development, as discussed above, that decision may impact this claim for TDIU. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected residuals of low back injury 4. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected residuals of low back injury The Board has recharacterized the Veteran's claim for depression more broadly to an acquired psychiatric disability in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Pursuant to the September 2016 and February 2018 Board remands, in August 2019 the AOJ scheduled the Veteran for VA DBQ examinations for mental disorder and for neck conditions as well as requested a VA DBQ medical opinion. A September 2019 Compensation and Pension (C&P) Examination Inquiry report documents the examinations and medical opinion were cancelled because the Veteran failed to report, but the Veteran's most recent address of record at that time was not used. As a result, the Board finds that the record does not show this examination and opinion request was properly scheduled, to include any indication that the Veteran received adequate notice. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he identify any private treatment facilities or providers relevant to his service-connected residuals of low back injury and provide him with the appropriate release forms. Then, make appropriate efforts to obtain any outstanding (a) private or VA treatment records so authorized for release from any facility and/or provider identified by the Veteran, to include Dr. T. at the University of Pittsburgh Medical Center, Greentree facility, with dates to include August 2015, and (b) any outstanding VA treatment records dated since October 2015. If these records cannot be obtained, the AOJ must document the attempts that were made to locate them and the Veteran must be notified. 2. Then, schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his service-connected residuals of low back injury. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide all findings, along with a complete rationale for any opinions provided. 3. Schedule the Veteran for an examination (physical or telehealth) with an appropriate clinician for his claim on appeal for an acquired psychiatric disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disability under the DSM-5 criteria (at any time since 2011, even if since resolved) began during active service or is related to an incident of service. (b.) Whether it is at least as likely as not that the Veteran's acquired psychiatric disability under the DSM-5 criteria (at any time since 2011, even if since resolved) was proximately due to or the result of his service-connected residuals of low back injury. (c.) Whether it is at least as likely as not that the Veteran's acquired psychiatric disability under the DSM-5 criteria (at any time since 2011, even if since resolved) was aggravated beyond its natural progression by his service-connected residuals of low back injury. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's claim on appeal for a cervical spine disability. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disability (including diagnosis of disc osteophyte complex (bone spur) and moderate degenerative changes, rendered in the March 2013 VA examination report, even if since resolved) began during active service, is related to an incident of service, or if symptoms of arthritis began within one year after discharge from active service. (b.) Whether it is at least as likely as not that the Veteran's cervical spine disability (including diagnosis of disc osteophyte complex (bone spur) and moderate degenerative changes, rendered in the March 2013 VA examination report, even if since resolved) was proximately due to or the result of his service-connected residuals of low back injury. (c.) Whether it is at least as likely as not that the Veteran's cervical spine disability (including diagnosis of disc osteophyte complex (bone spur) and moderate degenerative changes, rendered in the March 2013 VA examination report, even if since resolved) was aggravated beyond its natural progression by his service-connected residuals of low back injury. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 6. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.