Citation Nr: 21006417 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-23 794 DATE: February 4, 2021 REMANDED Entitlement to a rating in excess of 40 percent for spondylolisthesis Grade I L5/S1 (back condition) is remanded. Entitlement to an initial rating in excess of 20 percent for left leg radiculopathy is remanded. Entitlement to an initial compensable rating for scar status post spinal fusion is remanded. Service connection for testicular condition (also claimed as secondary to the low back condition) is remanded. Service connection for buttocks condition (also claimed as secondary to the low back condition) is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty in the U.S Army National Guard from June 1986 to August 1986 and the Army from May 1987 to November 1993. The issues are on appeal from February 2013 and September 2013 rating decisions. In April 2016, the regional office (RO) granted service connection for radiculopathy of the right leg at 10 percent disabling, effective April 8, 2016. As this is a full grant of the benefit sought on appeal, this part of the claim is no longer on appeal. Cf. AB v. Brown, 6 Vet. App. 35 (1993). The Board of Veterans’ Appeals (Board) notes that in the May 2016 substantive appeal, the Veteran’s representative expressed disagreement with the effective date of the service connection grant for radiculopathy of the right leg. Specifically, the representative alleged that the Veteran’s effective date of April 8, 2016 is in error because medical records demonstrate right leg disability as early as October 29, 2012 and again in April 9, 2014. Therefore, the Board considers the issue as raised and the claim for an earlier effective date for the grant of service connection for radiculopathy of the right leg is referred to the RO for adjudication. The Veteran and his wife testified before the undersigned in a December 2020 hearing. A transcript of the hearing is associated with the claims file. 1. Entitlement to a rating in excess of 40 percent for spondylolisthesis Grade I L5/S1 (back condition) is remanded. 2. Entitlement to an initial rating in excess of 20 percent for left leg radiculopathy is remanded. 3. Entitlement to an initial compensable rating for scar status post spinal fusion is remanded. The Veteran was last afforded VA examinations for his increased ratings claims in Apri 2016. During his December 2020 hearing, the Veteran asserted that his service-connected back condition, left leg radiculopathy, and spinal fusion scar have increased in severity since the Veteran was last examined by VA. Regarding his back condition and left leg radiculopathy, the Veteran testified his symptoms have worsened in severity, particularly in the last two years. The Veteran stated that he could no longer perform light chores at home as he could not stand up long enough to do dishes, prepare meals, or vacuum. He threw his back out by simply leaning forward and stretching his arm out because of the pressure this put on his low back. Further, the Veteran explained that he lost strength in his legs, resulting in his tripping and falling. He described the pain as “powerful zaps” and “strikes” which felt like electrical impulses and tight pulling sensations. The Veteran utilized a cane and walker for assistance as he frequently needed to sit in between walking. At the most, the Veteran could walk 100 to 200 yards before starting to feel the zaps. He stated that he cannot stand on cement floors nor shower below his knees. The Veteran’s wife helped him with drying off after a shower and changing his clothes. To deal with the pain, the Veteran took medication and slept as much as possible. However, the Veteran also experienced grogginess due to his pain medications and could not concentrate very hard nor remember short-term things. The weather greatly affected his pain levels and symptom manifestations. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his back condition, left leg radiculopathy, and spinal fusion scar. Additionally, the Veteran’s contemporaneous VA examinations of his back do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements nor pain on weight-bearing testing. On remand, the Veteran’s VA examination of his back condition must include Correia required testing results to properly adjudicate the Veteran’s claim. Finally, the Veteran testified that he regularly took medication as treatment for his pain. Therefore, evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA medical records are dated April 2016. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 4. Service connection for testicular condition (also claimed as secondary to the low back condition) is remanded. 5. Service connection for buttocks condition (also claimed as secondary to the low back condition) is remanded. The Board notes that the Veteran has consistently claimed that any testicular and buttocks conditions are secondary to his service-connected low back condition. However, the Board cannot make a fully-informed decision on the issue of service connection for testicular or buttocks conditions because no VA examiner has opined on whether either claimed disability is secondary to his service-connected back condition. On remand, VA examinations to assess and provide etiology opinions for the Veteran’s claimed testicular and buttocks conditions should be scheduled, in addition to any outstanding medical records relevant to his service connection claims. 6. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. Finally, because a decision on the referred and remanded issues above could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claims for a TDIU is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2016 to the Present. 2. After obtaining all outstanding records, schedule the Veteran for a VA examination by an appropriate clinician to assess the current severity of his back condition. 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, including limitation of motion, pain, favorable or unfavorable ankylosis, and interverbal disc syndrome. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. Schedule the Veteran for a VA examination by an appropriate clinician to assess the current severity of his left leg radiculopathy. 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, including whether there is complete or incomplete paralysis of a pertinent nerve, whether the nerve has a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether the involvement is wholly sensory, loss of reflexes, muscle atrophy, sensory disturbances, and pain. Thorough rationales should be provided for any opinions expressed. If the examiner determines that he/she/they cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she/they should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 4. Schedule the Veteran for a VA examination by an appropriate clinician to assess the current severity of spinal fusion scar. 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 including the number of scar(s), pain, stability/instability of the scar, tenderness, and scar superficiality. Thorough rationales should be provided for any opinions expressed. If the examiner determines that he/she/they cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she/they should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his testicular condition. The claims file must be made available to the examiner for review of the case. All tests and studies deemed necessary should be conducted. The examiner is instructed to provide the following information for each testicular diagnosis found: (a.) Is it at least as likely as not (i.e. 50 percent or greater) that the Veteran’s testicular condition(s) began in or is related to his active duty? (b.) Is it at least as likely as not (i.e. 50 percent or greater) that the Veteran’s testicular condition(s) was caused by his service-connected testicular condition? (c.) Is it at least as likely as not (i.e. 50 percent or greater) that the Veteran’s testicular condition(s) was aggravated (permanently worsened beyond natural progression) due to his service-connected back condition? If aggravation is found, the examiner is asked to quantify the degree of additional disability resulting from the aggravation. The examiner is asked to specifically consider the Veteran’s statements regarding his testicular condition(s). Thorough rationales should be provided for any opinions expressed. If the examiner determines that he/she/they cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she/they should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his buttocks condition. The claims file must be made available to the examiner for review of the case. All tests and studies deemed necessary should be conducted. The examiner is specifically instructed to provide the following information for each diagnosis found: (a.) Is it at least as likely as not (i.e. 50 percent or greater) that the Veteran’s buttocks condition(s) began in or is related to his active duty? (b.) Is it at least as likely as not (i.e. 50 percent or greater) that the Veteran’s buttocks condition(s) was caused by his service-connected back condition? (c.) Is it at least as likely as not (i.e. 50 percent or greater) that the Veteran’s buttocks condition(s) was aggravated (permanently worsened beyond natural progression) due to his service-connected back condition? If aggravation is found, the examiner is asked to quantify the degree of additional disability resulting from the aggravation. The examiner is asked to specifically consider the Veteran’s statements regarding his buttocks condition(s). Thorough rationales should be provided for any opinions expressed. If the examiner determines that he/she/they cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she/they should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 7. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for   further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.