Citation Nr: 21008743 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-05 761 DATE: February 17, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for a service-connected lower back disability prior to November 15, 2016, and in excess of 20 percent after November 15, 2016, is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected right lower extremity radiculopathy prior to November 15, 2016, and in excess of 20 percent after November 15, 2016, is remanded. Entitlement to an initial compensable rating for service-connected gastroesophageal reflux disease (GERD) prior to February 28, 2018, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty for training from August 1978 to December 1978 and on active duty from April 1979 to April 1983 and from July 1989 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in August 2020, which granted a joint motion for partial remand (JMPR) vacating a November 2019 Board decision and remanding the issues on appeal for additional development. The matter initially arose from rating decisions in December 2012, December 2013, and March 2015 by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The August 2020 Court order and JMPR found the prior Board decision had failed to set forth an adequate statement of reasons and bases for its findings. It was noted that the decision as to the lower back disability did not address a pertinent November 2012 examination finding of thoracolumbar spine forward flexion with pain beginning at 65 degrees, the Veteran’s lay statements regarding worsening symptoms on prolonged sitting, walking, and climbing as well as functional loss on repetitive use, and a November 2016 examination finding of additional range of motion loss during flare-ups to 30 degrees. It was further noted that the decision erred by not addressing non-sensory symptoms of reduced hip muscle strength in November 2012 and hypoactive deep tendon reflexes in October 2018 due to right lower extremity radiculopathy. As to the GERD issue, the decision it was noted had not adequately addressed the Veteran’s report of symptoms of vomiting, chest pain radiating to his arms, shoulder pain, and cough. The Board also notes that in August 2020 the Veteran submitted a statement reiterating his claims for increased ratings and requesting VA assistance in obtaining copies of private treatment records associated with his lower back and right lower extremity radiculopathy disabilities. The document stated a May 2019 VA treatment record showed the Veteran had been referred for a private neurosurgery consultation and that service department records dated in December 2012 indicated he had received pertinent non-VA physical therapy treatment. Although in a September 2020 statement the Veteran stated he had no additional evidence or argument to submit, he has not indicated that the identified private/non-VA treatment records are unavailable nor has he otherwise withdrawn his request for VA assistance in obtaining such records. It is additionally noted that VA has revised its regulations for evaluations of musculoskeletal disabilities, including for diseases and injuries of the spine, effective February 7, 2021. 38 C.F.R. § 4.71a. Those revisions include pertinent changes to the rating criteria for intervertebral disc syndrome (IVDS) disabilities.   A review of the available evidence includes inconsistent information as to the propriety of a diagnosis of IVDS. A January 2016 VA examination report included diagnoses of bilateral IVDS and multilevel facet degenerative joint disease with herniated nucleus pulposus. However, VA examinations in November 2016 and February 2018 did not identify IVDS as a diagnosis pertaining to the Veteran’s thoracolumbar spine. The Board also notes that the medical evidence of record does not address whether or not the Veteran’s reported symptoms of vomiting, chest pain radiating to his arms, shoulder pain, and cough are medically attributable to his service-connected GERD disability. As such, additional development is required for adequate determinations. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private or non-VA facility believed to maintain any treatment records pertinent to his claims. Make two requests for the authorized records from, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lower back disability. 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. A specific opinion must be provided clarifying the inconsistent diagnoses as to intervertebral disc syndrome over the course of the appeal. 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). 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 an examination by an appropriate clinician to determine the current severity of his service-connected right lower extremity 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. A specific opinion must be provided addressing any manifest non-sensory symptoms attributable to his right lower extremity radiculopathy, including VA examination findings of reduced hip muscle strength in November 2012 and hypoactive deep tendon reflexes in October 2018. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected GERD. 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. A specific opinion must be provided addressing whether his reported symptoms of vomiting, chest pain radiating to his arms, shoulder pain, and cough are medically attributable to his GERD. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.