Citation Nr: 21005313 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-28 087A DATE: February 1, 2021 REMANDED The claim of entitlement to ratings greater than 10 percent prior to August 8, 2019, and 20 percent from August 8, 2019, for lumbar strain, sacroiliac injury, idiopathic dextro lumbar scoliosis and residuals of a paraspinal tumor is remanded. The claim of entitlement to a separate compensable rating for residuals of a paraspinal tumor is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2003 to October 2003, from February 2010 to July 2010, and from April 2011 to February 2013. His claims come before the Board of Veterans' Appeals (Board) on appeal of a March 2016 rating decision, in which the Agency of Original Jurisdiction (AOJ) denied service connection for a paraspinal mass and continued the 10 percent rating assigned the Veteran’s lumbar spine disability. In a July 2017 Decision Review Officer decision, the AOJ granted the Veteran service connection for residuals of a paraspinal tumor and continued the 10 percent rating assigned his lumbar spine disability, recharacterized to include the tumor residuals. The Veteran testified in support of these claims during a hearing held before the undersigned Veterans Law Judge (VLJ) in January 2021. The transcript of this hearing is not yet available. However, this appeal meets the criteria for VA's one-touch initiative program, and, as such, this decision is being prepared pursuant to such program. To provide an immediate response to the Veteran after his hearing, a transcript of the hearing will be added to the Veteran's file later, in the normal course of business. The Veteran is also pursuing a claim of entitlement to a temporary total evaluation for convalescence following surgery for the paraspinal tumor. Contrary to the AOJ’s indications, this claim has been perfected for appeal (Veteran filed a timely VA Form 9) but has not been certified to the Board for appellate review. Once this is accomplished, the claim will be addressed in a separate decision. Entitlement to ratings greater than 10 percent prior to August 8, 2019, and 20 percent from August 8, 2019, for lumbar strain, sacroiliac injury, idiopathic dextro lumbar scoliosis and residuals of a paraspinal tumor Entitlement to a separate compensable rating for residuals of a paraspinal tumor The Veteran seeks a 20 percent rating for his lumbar spine disability from February 2013 and a separate 60 percent rating for residuals of his paraspinal tumor under Diagnostic Code 8022, based on it being benign. He testified that he has no feeling in his low back, a muscle issue causing his back to curve, pain shooting down his legs and into his arms, and related nerve issues (dissociative feelings), for which he has been referred. He also reported that prolonged sitting and walking results in flare-ups, and the former causes his back to lock up. In January and May 2016 letters, Michael Zervos, M.D., and Anthony Frempong-Boadu, M.D., from NYU Langone Medical Center (Langone), refer to a resection of a paraspinal tumor the Veteran underwent on January 8, 2016. According to Dr. F-B, he treated the Veteran from December 2015 to May 2016. The Veteran’s file includes records of his pre-surgical and surgical care by Drs. Z and F-B at Langone and references to post-operative office visits from January to September 2016, but not the results of those visits. As they are pertinent to these claims, they must be secured on remand. In addition, in an October 2019 rating decision, the AOJ increased the rating assigned the Veteran’s lumbar strain, sacroiliac injury, idiopathic dextro lumbar scoliosis and residuals of a paraspinal tumor to 20 percent, effective August 8, 2019, and assigned him a separate 20 percent rating for left T8 sensory radiculopathy associated with the lumbar spine disability. Prior to the resection of the tumor, the Veteran reported symptoms affecting his back and abdomen/stomach area. Since the procedure, he has claimed that his symptoms have worsened. An examination is thus needed to determine the current level of severity of his lumbar spine disability and residuals of the tumor resection. These matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain and associate with this file all records of the Veteran’s January 2016 to September 2016 post-operative office visits with Drs. Z and F-B. 2. Afford the Veteran a VA examination at the VA facility closest to Danville, PA, where the Veteran is attending school. If necessary, contact the Veteran first to coordinate the best location for the examination. The purpose of the examination is to ascertain the severity of the Veteran’s lumbar spine symptoms and the severity of the residuals of his paraspinal tumor resection. The examiner should review all pertinent evidence of record, including: the Veteran’s hearing testimony outlining his assertions; all VA and private post-service treatment records dated since 2013; the reports of VA examinations conducted in July 2013, July 2015, May 2018 and September 2019; and the examiners’ opinions. The examiner should record in detail the Veteran's history of spinal (all segments), abdominal and “nerve” complaints, including prior to and following the January 2016 surgery. The examiner should list and evaluate the severity of all lumbar spine symptoms, distinguishing them from the residuals of his paraspinal tumor resection. The examiner should then list and evaluate the severity of all residuals of the paraspinal tumor resection, including those affecting any other segment of the Veteran’s spine, any muscles, his abdominal area, his neurological system (other than left T8 sensory radiculopathy, which is already rated separately) and/or his mental health. The examiner should provide rationale for each opinion. 3. Readjudicate these claims. Consider whether the Veteran’s lumbar spine disability should still be characterized to include residuals of the paraspinal tumor resection. Consider whether separate ratings are assignable for such residuals based on neurological or mental health involvement (other than left T8 sensory radiculopathy, which is already rated separately) or damage to the muscles, abdominal area and/or other spinal segments. Consider the Veteran’s assertion that a separate 60 percent rating should be assigned such residuals under DC 8022, based on the paraspinal tumor being benign. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N. 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.