Citation Nr: 21009622 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-00 969 DATE: February 23, 2021 REMANDED The issue of an initial rating of more than 40 percent for chronic lumbosacral strain with intervertebral disc syndrome (IVDS) and spinal stenosis, to include increased ratings for left lower extremity radiculopathy rated as 40 percent and right lower extremity radiculopathy rated as 20 percent, and to include separate ratings for any other neurologic abnormalities, since May 16, 2012, is remanded. The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) since November 25, 2015, is remanded. The issue of entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance since May 16, 2012, is remanded. The issue of entitlement to SMC under 38 U.S.C. § 1114(s) based on a service connected disability rated as total and additional service-connected disability or disabilities independently ratable at 60 percent or more since May 16, 2012, is remanded. REASONS FOR REMAND The Veteran served in the U.S. Navy from January 1998 to January 2002. In October 2018, the Board denied an initial rating of more than 40 percent for the Veteran’s lumbar spine disorder; granted TDIU for the period from May 16, 2012, to November 24, 2015; and dismissed the issue of entitlement to TDIU since November 25, 2015. The Veteran appealed to the United States Court of Appeals for Veterans’ Claims (Court). In October 2019, the Court granted the Parties’ Joint Motion for Partial Remand (JMPR); vacated the October 2018 Board decision except for the grant of TDIU from May 16, 2012, to November 24, 2015; and remanded the Veteran’s appeal to the Board. The Board remanded the appeal in April 2020. 1. The issue of an initial rating of more than 40 percent for chronic lumbosacral strain with IVDS and spinal stenosis, to include increased ratings for left lower extremity radiculopathy rated as 40 percent and right lower extremity radiculopathy rated as 20 percent, and to include separate ratings for any other neurologic abnormalities, since May 16, 2012, is remanded. 2. The issue of entitlement to TDIU since November 25, 2015, is remanded. 3. The issue of entitlement to SMC based on the need for regular aid and attendance since May 16, 2012, is remanded. 4. The issue of entitlement to SMC under 38 U.S.C. § 1114(s) based on a service connected disability rated as total and additional service-connected disability or disabilities independently ratable at 60 percent or more since May 16, 2012, is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The October 2019 JMPR stated that the Board must obtain VA treatment records from VA Illiana Health Care System in Danville, Illinois, since October 2017. VA treatment records were associated with the file in April 2020. However, because the Board must again remand the appeal, any records generated since that time must be obtained and associated with the file. The October 2019 JMPR also stated that the Board must address the issues of TDIU since November 25, 2015; whether TDIU granted from May 16, 2012, to November 24, 2015, was based solely on the Veteran’s service connected lumbar spine disorder and, if so, whether the Veteran was entitled to SMC under 38 U.S.C. § 1114(s); and whether the Veteran was entitled to SMC based on the need for aid and attendance. The Veteran’s right and left lower extremity radiculopathy is part of his service-connected lumbar spine disorder and must be rated as part of the increased rating for the spine. Any other neurologic abnormalities associated with the lumbar spine disorder must also be rated as part of the increased rating for the spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 1. Therefore, the issues on appeal are as stated on the first page of this decision. The October 2019 JMPR indicates that the Veteran’s lumbar spine disorder may have increased in severity such that he requires regular aid and attendance. The Veteran has not been afforded a VA examination for his lumbar spine and right and left lower extremity radiculopathy since December 2014. In order to determine whether an increased rating is warranted, updated VA examinations must be obtained. The Veteran should also be afforded an aid and attendance examination to assess whether he requires regular aid and attendance. 2. Associate with the record any VA clinical documentation not already of record—including records from VA Illiana Health Care System in Danville, Illinois, since October 2017. 3. Schedule the Veteran for VA lumbar spine, peripheral nerves, and aid and attendance examinations to obtain an opinion as to the current nature of his lumbar spine disorder with right and left lower extremity radiculopathy and to determine whether he requires regular aid and attendance. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The thoracolumbar spine examination report must comply with Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) and, therefore: (a.) must include range of motion testing on passive AND active motion. (b.) must address whether there is pain on weight bearing AND non-weight-bearing. (c.) must indicate the degree at which pain begins during each range of motion. (d.) must include an estimate of the degrees of range of motion lost during flare-ups AND following repeated use over time. The peripheral nerves examination must indicate all nerves which are impaired as a result of right and left lower extremity radiculopathy. 4. Readjudicate the issues on appeal, including determination of whether TDIU from May 16, 2012, to November 24, 2015, is based solely on the Veteran’s chronic lumbosacral strain with IVDS and spinal stenosis and right and left lower extremity radiculopathy. 5. . If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Miller, 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.