Citation Nr: 21012589
Decision Date: 03/04/21	Archive Date: 03/04/21

DOCKET NO. 14-30 572
DATE: March 4, 2021

REMANDED

Entitlement to an initial rating in excess of 40 percent prior to April 26, 2019, and in excess of 60 percent thereafter, for left lower extremity radiculopathy is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1982 to April 1989.

This matter comes before the Board of Veterans’ Appeals on appeal from a December 2012 rating decision denying service connection for metatarsalgia (claimed as left foot injury) and granting service connection for left lower extremity radiculopathy and assigning a 40 percent rating.

In June 2018, the Board remanded this matter for further development, to include affording the Veteran VA examinations.

The Veteran was afforded VA examinations and, thereafter, in a September 2020 rating decision, he was awarded service connection for metatarsalgia, which represents a full grant of the benefit sought and, therefore, this issue is no longer on appeal here.  See AB v. Brown, 6 Vet. App. 35 (1993).  In a separate June 2020 rating decision, the rating for left lower extremity radiculopathy was increased to 60 percent, effective April 26, 2019.  As the increase does not represent a full grant of the benefit sought, the claim remains before the Board.  Id.

1. Entitlement to an initial rating in excess of 40 percent prior to April 26, 2019, and in excess of 60 percent thereafter, for left lower extremity radiculopathy is remanded.

Remand of the Veteran’s claim is appropriate to obtain outstanding treatment records from VA.  The VA treatment records in the claims file show that potentially relevant treatment records were scanned into the Veteran’s VA medical file, including January 14, 2019, May 27, 2014, January 14, 2014, and November 4, 2013 orthopedic treatment records and March 31, 2014, March 24, 2014, and January 14, 2014 physical therapy treatment records.  However, such records are not in the Veteran’s claims file.  As it appears that there are outstanding VA records, remand is appropriate to obtain such records.

As an aside, the Board acknowledges the Veteran’s representative’s argument in the February 2021 brief claiming the question of an extraschedular rating has been raised pursuant to 38 C.F.R. § 3.321.  At this time, however, the evidence does not support that the Veteran’s disability picture is incapable of being fully evaluated under the rating schedule.  See Long v. Wilkie, 2020 U.S.App. Vet. Claims LEXIS 2371 (December 30, 2020).  The RO should give due consideration of the extraschedular argument after outstanding records are obtained. 

The matters are REMANDED for the following action:

1. Obtain any additional VA treatment records, to include VA treatment records from June 2020 to the present.  Associate with the claims file all potentially relevant documents scanned into Vista Imaging or CPRS but not associated with the Veteran’s claims file, including the January 14, 2019, May 27, 2014, January 14, 2014, and November 4, 2013 orthopedic treatment records and March 31, 2014, March 24, 2014, and January 14, 2014 physical therapy treatment records.

2. After the above development, and any other development deemed necessary, readjudicate the claim, to include consideration of the raised argument in the Veteran’s representative’s February 2021 brief asserting entitlement to an extraschedular rating under 38 C.F.R. § 3.321.

 

 

Shereen M. Marcus

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Purcell

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.