Citation Nr: 21005339 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-02 566 DATE: February 1, 2021 REMANDED The issue of an initial rating in excess of 10 percent prior to September 13, 2019, and in excess of 20 percent thereafter for radiculopathy of the left lower extremity is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1980 to May 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, a travel Board hearing was conducted. A transcript of the hearing is associated with the claims file. In January 2019 and September 2020, the Board remanded the issues on appeal for further development. As will be discussed below, a review of the record reflects that the Agency of Original Jurisdiction (AOJ) failed to substantially comply with the September 2020 Board’s Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of the appeal, a March 2020 rating decision, in pertinent part, granted service connection for radiculopathy of the right lower extremity and increased the rating for radiculopathy of the left lower extremity to 20 percent, effective September 13, 2019. 1. The issue of an initial rating in excess of 10 percent prior to September 13, 2019, and in excess of 20 percent thereafter for radiculopathy of the left lower extremity. 2. The issue of TDIU. The Veteran contends that his service-connected back and left lower extremity (LLE) radiculopathy, to include flare-ups, limit his ability to sit, stand, walk, lift, operate a vehicle, concentrate, and work. See October 2020, VA examination; August 2020, Correspondence. Social Security Administration (SSA) records include a functional capacity examination that notes the Veteran’s service-connected back disability has definite restriction of forward movement of the lumbar spine, markedly reduced extension, significantly reduced rotation, and significant reduction of Straight Leg Raise (SLR) test on both sides due to pain. The examination further noted the Veteran’s report of increased severe pain during any prolonged standing, walking, or sitting. See April 2017, SSA records. The Board finds an addendum to the October 2020 VA opinion is necessary. In October 2020, a VA examination for the back and neurological conditions was conducted. The VA examiner noted the Veteran’s reports of daily back pain at a five to seven out of 10 and flare-ups that increase pain to a seven to nine out of 10. Other symptoms included the need to change positions from standing, sitting, and walking to manage pain; avoidance of lifting and operating a vehicle except for infrequent drives to the local grocery store; and walking limited to one quarter block every other day. The VA examiner found the Veteran did not experience flare-ups, that LLE radiculopathy has completely resolved, and the Veteran’s service-connected back disability does not impact his ability to work. All of these findings are inconsistent with the medical and lay evidence of record. See July 2018, Hearing transcript; April 2017, SSA records; November 2012, Notice of Disagreement; February 2012, VA Examination. See October 2020, VA examination. The Board, accordingly, finds an addendum opinion is required. The Veteran also reported being treated by his primary care physician, Dr. Guevera, for back pain and radiculopathy since 2018, but VA has not requested any of those records. See October 2020, VA examination. Additionally, the claims file has VA treatment records through November 2020. On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran’s claims file. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment records of the Veteran dated since November 2020 and associate them with the claims file. 2. Contact the Veteran and request that he provide the names and addresses of any and all health care providers who have provided treatment for his service-connected back and associated radiculopathy, including Dr. Guevera. After acquiring this information and obtaining any necessary authorization, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran. Information obtained must be made part of the file. Attempts to secure evidence must be documented in the claims file, and if evidence is not able to be secured, provide the required opportunity to respond to the Veteran. 3. After completing directives #1 and #2, obtain an addendum opinion for the October 2020 VA examination from the original VA examiner to determine the nature and severity of any LLE radiculopathy or other neurological consequences of his service-connected low back disability. If the original VA examiner is unavailable, a new examiner may be assigned. Examination of the Veteran is necessary to provide a reliable opinion as the examiner must ask the Veteran about any flare-ups and functional loss due to repetitive use over time, if any. The examiner should review the virtual file and address the following concerning the entire period on appeal: (a.) The examiner should determine the severity, frequency, and duration of lower extremity radiculopathy or other neurological consequences of the Veteran’s service-connected low back disability during the entire period of appeal. The examiner is to consider the history and lay statements provided by the Veteran, to include any worsening symptoms. The examiner is reminded that the Veteran is competent to report his symptoms. (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. If feasible, the examiner must assess the additional functional impairment on repeated use over time and during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Recent caselaw has held that the lack of opportunity to observe during a flare-up and/or after repeated use over time is an insufficient basis for not estimating the functional effects in terms of degrees of range of motion. (c.) The examiner should provide an assessment of the effect of the Veteran’s low back disability and associated neurological disabilities on any occupational functioning, activities of daily living, and his ability to perform specific work-related tasks. Specific work-related tasks should include sitting, standing, walking, lifting, operating a vehicle, concentrating, or maintaining a continuous pace of work. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.