Citation Nr: 21077272
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 16-15 225
DATE: December 29, 2021

REMANDED

Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease and degenerative joint disease lumbosacral spine with spinal stenosis L3-4 and chronic thoracolumbar strain is remanded.

Entitlement to an initial disability rating in excess of 10 percent prior to August 1, 2016, in excess of 20 percent from August 1, 2016, to March 15, 2020, and in excess of 40 percent from March 16, 2020, for right lower extremity radiculopathy of the sciatic nerve is remanded.

Entitlement to an initial disability rating in excess of 20 percent prior to March 16, 2020, and in excess of 10 percent from March 16, 2020, for right lower extremity radiculopathy of the femoral nerve is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 2008 to February 2009 and from June 2011 to July 2011.

These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2013 and October 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  A February 2017 rating decision increased the disability rating for the Veteran's right lower extremity radiculopathy of the sciatic nerve from 10 percent to 20 percent, effective August 1, 2016, and granted service connection for right lower extremity radiculopathy of the femoral nerve and assigned a 20 percent disability rating effective August 1, 2016.  A September 2020 rating decision increased the disability rating for the Veteran's right lower extremity radiculopathy of the sciatic nerve from 20 percent to 40 percent, effective March 16, 2020, and decreased the disability rating for the Veteran's right lower extremity radiculopathy of the femoral nerve from 20 percent to 10 percent, effective March 16, 2020.

In May 2019, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record.

In September 2019 and January 2021, the Board remanded these matters for further evidentiary development.

Entitlement to increased ratings for a lumbosacral spine disability, for right lower extremity radiculopathy of the sciatic nerve, and for right lower extremity radiculopathy of the femoral nerve and entitlement to a TDIU are remanded.

In the January 2021 Board remand, the Board asked the Agency of Original Jurisdiction (AOJ) to obtain VA records from August 2020 to the present.  It does not appear that these updated VA records have been associated with the claims file.  A January 2021 document labeled as CAPRI, which would indicate that it contains VA treatment records, is blank.  However, a March 2021 Supplement Statement of Case references VA records from August 2020 to October 2020 and indicates that they were reviewed.  Thus, it appears an error may have occurred when the documents were uploaded to the claims file.  As not all of the VA treatment records have been associated with the claims file as requested in the prior remand, remand is required to ensure any updated VA treatment records are added to the claims file.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO substantial compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure substantial compliance).

The matters are REMANDED for the following action:

Obtain and associate with the claims file VA treatment records from August 2020 to the present. 

 

 

M. SORISIO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Patel, 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.