Citation Nr: 21012628 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 08-32 615 DATE: March 4, 2021 REMANDED Entitlement to an initial evaluation in excess of 20 percent for degenerative joint disease of the thoracic and lumbar spine is remanded. Entitlement to a separate disability rating prior to July 20, 2017, and an initial evaluation in excess of 20 percent from that date for radiculopathy of the femoral nerve of the right lower extremity is remanded. Entitlement to a separate disability rating prior to September 12, 2011, and an initial evaluation in excess of 10 percent from that date for radiculopathy of the posterior and anterior tibial nerve of the left lower extremity is remanded. Entitlement to a separate disability rating prior to September 12, 2011, and an initial evaluation in excess of 10 percent from that date for radiculopathy of the posterior and anterior tibial nerves of the right lower extremity is remanded. Entitlement to a separate disability rating for a surgical scar prior to July 20, 2017, and an initial compensable evaluation from that date is remanded. REASONS FOR REMAND The Veteran had active military service from July 1971 to July 1975, February 1997 to August 1997, August 1998 to May 1999, October 1999 to September 2000, October 2000 to September 2001, October 2001 to March 2002, October 2002 to August 2004, and February 2005 to August 2005. This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2016 decision, the Board denied the Veteran’s claim for an initial evaluation in excess of 20 percent for his back disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (“CAVC”). In March 2017, CAVC issued an order granting a Joint Motion for Remand (JMR) which vacated and remanded the Board’s April 2016 decision. The case was remanded by the Board in June 2017 and March 2018 for additional development. In June 2010, the Veteran provided testimony at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing is associated with the file. The Veteran was notified that he was entitled to another hearing. The Veteran responded in August 2014 and indicated that he did not want to attend another hearing in this matter. In September 2020, the Board sent the Veteran a letter indicating that he could attend a virtual hearing. An October 2020 memorandum indicates that the letter was sent in error, and there is no indication that the Veteran has relied on the September 2020 letter. 1. Entitlement to an initial evaluation in excess of 20 percent for degenerative joint disease of the thoracic and lumbar spine is remanded. 2. Entitlement to a separate disability rating prior to July 20, 2017, and an initial evaluation in excess of 20 percent from that date for radiculopathy of the femoral nerve of the right lower extremity is remanded. 3. Entitlement to a separate disability rating prior to September 12, 2011, and an initial evaluation in excess of 10 percent from that date for radiculopathy of the posterior and anterior tibial nerve of the left lower extremity is remanded. 4. Entitlement to a separate disability rating prior to September 12, 2011, and an initial evaluation in excess of 10 percent from that date for radiculopathy of the posterior and anterior tibial nerves of the right lower extremity is remanded. 5. Entitlement to a separate disability rating for a surgical scar prior to July 20, 2017, and an initial compensable evaluation from that date is remanded The Veteran underwent a VA examination in July 2017 for his service-connected back disability. The July 2017 VA examination did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) as the examinations did not contain passive range of motion measurements or pain on weight-bearing testing. Additionally, the VA examination did not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) since the examiner did not offer an opinion estimating the limitation of function during a flare up using lay statements from the Veteran or explain why such an opinion cannot be offered. The RO should also schedule an examination for the Veteran’s service-connected bilateral lower extremity radiculopathy. In order to comply with the directives in the Board’s March 2018 remand, the examiner should address additional questions outlined in the remand directives below regarding the Veteran’s service-connected bilateral lower extremity radiculopathy. Also, an August 2017 VA examiner noted that the Veteran had a lumbar laminectomy in November 2012 and that post-operatively, he had increased urinary incontinence. The November 2018 examiner stated that the Veteran had not been diagnosed with urinary incontinence but should be evaluated by a urologist. There is currently insufficient evidence in the record as to whether the Veteran has a urologic disability related to his service-connected back disability. Therefore, the RO should schedule the Veteran for an examination. With respect to the Veteran’s service-connected scar disability, insufficient evidence is in the record to determine whether an increased evaluation is appropriate. Therefore, a new examination should be scheduled for the Veteran. Finally, the RO received medical documents from the Veteran, along with completed authorizations to obtain medical records from several medical providers in September 2019. Although the Veteran included medical records with the release, it is not apparent that these records are complete. The record does not reflect whether the RO attempted to obtain those records from the Veteran’s medical providers. As the completed authorizations are more than one year old, the RO should attempt to obtain new authorizations from the Veteran and attempt to obtain records from any private clinician identified by the Veteran. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private clinician who treated the Veteran’s service-connected back disability or service-connected radiculopathy, to include Dr. C.L., Dr. J.W., Dr. C.L., and Dr. J.T. Make two requests for the authorized records from the clinicians as authorized by the Veteran, 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 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. 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). Also, 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 bilateral 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. The examiner should also specify which nerve is affected by any present radiculopathy and the degree of paralysis (complete or incomplete; mild, moderate, moderately severe or severe) for each nerve. The examiner should also indicate whether at any point the Veteran’s neurological manifestations increased in severity and if so, the approximate date of any such change. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any urologic disability. If the Veteran is diagnosed with a urologic disability, the examiner should opine whether any diagnosed disability is at least as likely as not proximately due to, or aggravated, i.e., worsened beyond its natural progression by, his service-connected back disability. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected surgical 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. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, Associate 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.