Citation Nr: 21006349 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-15 508 DATE: February 3, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for left metatarsalgia is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative joint and disc disease of the lumbar spine with intervertebral disc disorder for the period from May 23, 2014, to February 21, 2018, is remanded. Entitlement to a disability rating in excess of 40 percent for degenerative joint and disc disease of the lumbar spine with intervertebral disc disorder for the period beginning June 1, 2018, is remanded. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the sciatic nerve of the right lower extremity is remanded. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the sciatic nerve of the left lower extremity is remanded. Entitlement to higher initial disability ratings for radiculopathy of the femoral nerve of the right lower extremity, currently rated as 0 percent since May 23, 2014, and 10 percent since January 13, 2016, is remanded. Entitlement to higher initial disability ratings for radiculopathy of the femoral nerve of the left lower extremity, currently rated as 0 percent since May 23, 2014, and 10 percent since January 13, 2016, is remanded. REASONS FOR REMAND The Veteran had active military service from March 2009 to June 2010 and from May 2012 to May 22, 2014. These issues are on appeal from September 2014 and March 2016 rating decisions. In May 2019, the Veteran testified before the undersigned Veterans Law Judge at a hearing. In September 2019, the Board of Veterans’ Appeals (Board) remanded this appeal to the Agency of Original Jurisdiction (AOJ) for further jurisdiction. The Board specifically remanded the left foot claim for a Statement of the Case (SOC) to be issued. See Manlincon v. West, 12 Vet. App. 238 (1999). Upon remand, the AOJ issued a Supplemental SOC (SSOC) in July 2020 addressing the left foot issue and then certified the issue to the Board. In response, the Veteran’s representative addressed the left foot issue in the November 2020 Appellate Brief. The Board notes the record is absent a VA Form 9 appealing this issue. However, by including this issue in the SSOC and by certifying this issue to the Board, VA has waived any objection to the timeliness issue. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). Given such, the Veteran's left foot claim is before the Board and is discussed below. 1. Entitlement to a disability rating in excess of 10 percent for left metatarsalgia is remanded. The Veteran’s left metatarsalgia is currently rated under Diagnostic Code 5279 (metatarsalgia) but was previously rated as a left foot strain under Diagnostic Code 5284 (residuals of other foot injuries). 38 C.F.R. § 4.71a. In a September 2018 VA treatment record, mild pes cavus of the left foot was documented. These symptoms were not reported at the prior VA foot examinations in June 2014 and January 2016. The VA treatment record suggests that the Veteran’s left foot symptoms may have increased in severity since he was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected left foot disability. 2. Entitlement to a disability rating in excess of 10 percent for degenerative joint and disc disease of the lumbar spine with intervertebral disc disorder for the period from May 23, 2014, to February 21, 2018, is remanded. 3. Entitlement to a disability rating in excess of 40 percent for degenerative joint and disc disease of the lumbar spine with intervertebral disc disorder for the period beginning June 1, 2018, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the lumbar spine issues. In September 2019, the Board remanded these claims for a VA examination to be obtained that complied with the range of motion findings required by Correia v. McDonald, 28 Vet. App. 158 (2016). A VA examination was obtained in January 2020, but passive range of motion findings were not provided. This is not sufficient under Correia. Id. Another remand is required for an adequate VA examination to be obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the sciatic nerve of the right lower extremity is remanded. 5. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the sciatic nerve of the left lower extremity is remanded. 6. Entitlement to higher initial disability ratings for radiculopathy of the femoral nerve of the right lower extremity, currently rated as 0 percent since May 23, 2014, and 10 percent since January 13, 2016, is remanded. 7. Entitlement to higher initial disability ratings for radiculopathy of the femoral nerve of the left lower extremity, currently rated as 0 percent since May 23, 2014, and 10 percent since January 13, 2016, is remanded. Finally, because the remanded lumbar spine VA examination will provide radiculopathy findings that could significantly impact a decision on the radiculopathy issues, the lumbar spine and radiculopathy issues are inextricably intertwined. Thus, a remand of the radiculopathy claims is required.   The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left foot disability, to include left metatarsalgia. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, 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). In so doing, 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. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, 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). The examiner must also address the September 2018 VA treatment record that documents mild pes cavus of the left foot, and opine whether this is a symptom or manifestation of the service-connected left metatarsalgia. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative joint and disc disease of the lumbar spine with intervertebral disc disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, 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). In so doing, 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. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, 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). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of: entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the sciatic nerve of the right lower extremity; entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the sciatic nerve of the left lower extremity; entitlement to higher initial disability ratings for radiculopathy of the femoral nerve of the right lower extremity, currently rated as 0 percent since May 23, 2014, and 10 percent since January 13, 2016; and, entitlement to higher initial disability ratings for radiculopathy of the femoral nerve of the left lower extremity, currently rated as 0 percent since May 23, 2014, and 10 percent since January 13, 2016. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a SSOC and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, 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.