Citation Nr: 21006145 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-11 529 DATE: February 3, 2021 REMANDED Entitlement to a rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity is remanded. Entitlement to a higher rating for radiculopathy of the right lower extremity evaluated as 10 percent disabling since July 14, 2016 is remanded. Entitlement to an increased rating for service-connected lumbar spine spondylolisthesis with left radiculopathy status post lumbar fusion is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1979 to February 2005. The Veteran’s increased rating claims for radiculopathy of the bilateral lower extremities and lumbar spine spondylolisthesis were before the Board in May 2019. The Board denied the claims on the merits. The Veteran timely appealed the claim to the U.S. Court of Appeals for Veterans Claims (CAVC or Court). In a joint motion for partial remand, the Court set aside and remanded the Veteran’s increased rating claims, stating that the Board did not consider the favorable evidence of record, thereby providing insufficient reasons and bases for the decision. The case has been returned to the Board for further development and adjudication of the issues on appeal. The Board notes that the claim on appeal stems for a claim for an increased rating filed on February 21, 2013. The AOJ initially denied a rating in excess of 10 percent for disability coded as “LUMBAR SPINE SPONDYLOSISTHESIS WITH LEFT RADICULOPATHY, STATUS POST LUMBAR FUSION.” During the appeal period, a December 2016 rating decision assigned a 10 percent rating for left lower extremity radiculopathy effective July 14, 2016 – stating that this was the first date that a worsening to a compensable level was shown. The AOJ also awarded service connection for right lower extremity radiculopathy and assigned a 10 percent rating for left lower extremity radiculopathy effective July 14, 2016. A January 2020 AOJ rating decision revised the decision and awarded a 10 percent rating for left lower extremity radiculopathy effective to February 21, 2013 – the date of the increased rating claim. The Board generally notes that the Veteran’s claim on appeal initially involves the proper evaluation for the orthopedic and neurologic complications of his intervertebral disc syndrome (IVDS). See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Once those determinations are made and combined under 38 C.F.R. § 4.25, the rater must proceed to an inquiry whether a higher, alternative rating may be assigned under the Formula for Rating IVDS Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. With this in mind, in March 2020, the Veteran timely submitted a Form 9, appealing an AOJ rating decision on issues of entitlement to an effective date prior to February 21, 2013 for the separate 10 percent rating for left lower extremity radiculopathy and entitlement to an effective date prior to July 14, 2016 for service connection for right lower extremity radiculopathy. The Board also notes that in November 2020, the Veteran’s representative contended that the Veteran’s July 2008 filing for service connection for a nerve disorder of the lower extremities should also be viewed as an increased rating claim for a low back condition. A December 2008 rating decision granted service connection for right meralgia paresthetica and assigned a noncompensable rating effective June 23, 2008. It is well settled that a veteran’s claim is to be construed liberally. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). However, the Board cannot factually ascertain that a service connection claim for this particular nerve disorder can also be interpreted as an increased rating for a low back condition. In this respect, the right meralgia paresthetica first manifested in service and radiologic examinations ruled out the lumbosacral spine and abdomen/pelvis as the etiology of the complaints. The Veteran made no reference or mention to his lumbar disability in the correspondence pertaining to this issue. It was, therefore, not reasonably raised. Therefore, the Board will not consider the Veteran’s July 2008 filing for service connection for a nerve disorder as an increased rating claim for a low back condition in connection with this appeal. 1. Entitlement to an increased rating for service-connected radiculopathy of the left lower extremity is remanded. 2. Entitlement to an increased rating for service-connected radiculopathy of the right lower extremity is remanded. 3. Entitlement to an increased rating for service-connected lumbar spine spondylolisthesis with left radiculopathy status post lumbar fusion is remanded. Lastly, the Board notes that the Veteran was last afforded an examination for his lumbar and radiculopathy disabilities in July 2016. Throughout the appeal period, he has asserted that the current severity of his service-connected lumbar and radiculopathy of the bilateral lower extremities’ disabilities are worse than what is contemplated by the current rating. Therefore, the Board finds that a more contemporaneous examination of the service-connected lumbar spine and radiculopathy of the bilateral lower extremities are warranted in order to ensure that the record reflects the current severity of this disabilities. The matters are REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records. 2. Schedule the Veteran for a VA examination to assess the current severity and manifestations of his service-connected lumbar spine disability and radiculopathy of the bilateral lower extremities’ disabilities. Access to the electronic claims file must be made available to the examiner for review. The examiner should address any neurological disabilities associated with his lumbar spine to include the Veteran’s service-connected radiculopathy. Additionally, the examiner should provide any finding(s) as to whether he/she could differentiate between symptoms attributable to the sciatic and femoral nerve, if present. The examiner is specifically requested to answer the following: Whether there is any medical reason to accept or reject the belief that the Veteran’s January 2, 2013 private treatment records, indicating pain, burning and numbness of the bilateral lower extremities is associated with the Veteran’s diagnosis of radiculopathy. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: Active motion; Passive motion; Weight-bearing; and Nonweight-bearing. The degree at which pain begins must be documented. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.