Citation Nr: 21007086 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-38 795 DATE: February 8, 2021 REMANDED Entitlement to an initial rating in excess of 40 percent for intervertebral disc syndrome of the thoracolumbar spine from July 28, 2015, to October 14, 2015, and since February 1, 2016, is remanded. Entitlement to initial increased ratings for sciatica of the right lower extremity – currently rated as 10 percent disabling from September 1, 2013, to November 1, 2020, and 20 percent disabling since November 2, 2020, is remanded. Entitlement to initial increased ratings for right femoral radiculopathy – currently rated as 10 percent disabling from July 28, 2015, to August 9, 2017, and zero percent disabling since August 10, 2017; and to include whether a separate rating is warranted prior to July 28, 2015, is remanded. Entitlement to initial increased ratings for left femoral radiculopathy – currently rated as 10 percent disabling from July 28, 2015, to August 9, 2017, and zero percent disabling since August 10, 2017; and to include whether a separate rating is warranted prior to July 28, 2015, is remanded. REASONS FOR REMAND The Veteran had active service from July 1983 to August 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of a Department of Veterans Affairs (VA) regional office (RO). In March 2020, the Veteran testified at a Travel Board hearing held at a RO before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. In July 2020, the Board denied an initial rating in excess of 10 percent for the back disability from September 1, 2012, to July 27, 2015; granted an initial 40 percent disability rating for the back disability effective from July 28, 2015, to August 9, 2017; and remanded the claim for an initial rating in excess of 40 percent for the back disability since July 28, 2015. The Board took jurisdiction of a claim of entitlement to an initial rating in excess of 10 percent for sciatica of the right lower extremity as well as entitlement to a temporary total disability evaluation based on the need for convalescence following thoracolumbar surgery and remanded both claims for further development. In a November 2020 rating decision, a RO granted a temporary 100 percent disability rating for the lumbar spine disability based on surgery necessitating convalescence from October 15, 2015, to January 31, 2016. The Veteran was notified of that decision in December 2020 and has not expressed disagreement with the effective dates of the 100 percent temporary rating. Therefore, that issue is no longer in appellate status. In the November 2020 rating decision, the RO assigned a 20 percent disability rating for sciatica of the right lower extremity effective November 2, 2020. As the 20 percent disability rating is not the maximum rating available for the sciatica, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In the November 2020 rating decision, the RO granted service connection for bilateral femoral radiculopathy effective July 28, 2015; assigned two 10 percent ratings for the disabilities from July 28, 2015, to August 9, 2017; and assigned two zero percent disability ratings for the disabilities effective August 10, 2017. The Board finds that the issues of initial increased ratings for bilateral femoral radiculopathy are part and parcel of the issue of an increased rating for right sciatica because the grant was made pursuant to the remand of the issue involving the right sciatica. Moreover, as the effective date of the grant of service connection for right sciatica is prior to July 28, 2015, the Board will consider whether separate ratings are warranted for bilateral femoral radiculopathy prior to July 25, 2015. In light of above, the issues are as stated on the first page of this decision. In a November 2020 supplemental statement of the case, the RO only addressed the issue of an increased rating for the lumbar spine disability and not any secondary neurological disabilities of the lower extremities, such as the right sciatica. Therefore, the RO did not comply with the directives of the July 2020 remand. Stegall v. West, 11 Vet. App. 268 (1998). In a September 2020 statement, the Veteran reported that he received treatment from Dr. F. at Hanscom Air Force Base as a military retiree. The RO should obtain records from that provider as well as any additional records from the Bedford VA Medical Center for the period from November 2020 to the present and from the VA Boston Healthcare System from September 2020 to the present. The Veteran was last examined for his back disability in August 2017. VA treatment records reflect that the Veteran reported that in October 2017 his pain level was a 2 on a scale of 1 to 10. In March 2020, he reported that his back pain returned six months ago after improving subsequent to his 2015 surgery. In May 2020, the Veteran reported that his pain level was now a 4 in comparison to only being a 2 in October 2017. In October 2020, he reported that his pain level was 4 to 6 in the morning. In light of the passage of time and possible worsening of the back disability, a new examination is warranted. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his back disability and neurological disabilities of the lower extremities, and obtain any identified records. Obtain the Veteran’s military-retiree treatment records from Hanscom Air Force Base or the current depository of such records. Document all requests for information as well as all responses in the claims file. Obtain the Veteran’s VA treatment records from the Bedford VA Medical Center for the period from November 2020 to the present and from the VA Boston Healthcare System from September 2020 to the present. 2. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected intervertebral disc syndrome. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. 3. After the development in 1 through 2 is completed, the RO should undertake any necessary development on the claims for increased ratings for the sciatica of the right lower extremity and the bilateral femoral radiculopathy as warranted by any additional evidence of record 4. After development above has been completed, the RO should readjudicate the Veteran’s claims with consideration of all evidence of record. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.