Citation Nr: 21012903 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 11-19 868 DATE: March 5, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for lumbar degenerative disc disease is remanded. Entitlement to higher initial ratings for radiculopathy of the right lower extremity, evaluated as 10 percent disabling prior to September 28, 2010, and as 20 percent disabling since September 28, 2010, is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1973 to October 1993. The Veteran died in August 2018 during the pendency of this appeal. Substitution was subsequently granted. The appellant is the Veteran's surviving spouse and has been substituted for the Veteran as the appellant to pursue this appeal to completion. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). During his lifetime the Veteran was represented in this matter by the American Legion. In order for a representative to represent the appellant as the Veteran’s substitute, a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) or VA Form 21-22a (Appointment of Individual as Claimant’s Representative) must be submitted. 38 C.F.R. § 14.631(g). As there is no valid power of attorney on file by the appellant appointing a representative, the appellant is proceeding pro se. A videoconference hearing before a Veterans Law Judge (VLJ) was held in January 2012. A transcript of that hearing has been obtained and associated with the claims file. In correspondence dated in July 2020, the appellant was informed that the VLJ who conducted the Veteran’s January 2012 hearing was no longer employed at the Board and given the opportunity to testify before another VLJ. The appellant did not response and the Board will proceed to decide the appeal. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the appellant has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP). Although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal was issued prior to that date. Accordingly, the Board will review this appeal under the existing Legacy Appeals System. The Veteran initially filed the claims currently on appeal in January 2010, at which time he also filed a claim of entitlement to a TDIU. A VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) was received by VA in February 2010. However, the RO denied entitlement to a TDIU in the July 2010 Rating Decision. Although the Veteran did not explicitly appeal the RO’s denial of entitlement to a TDIU, he continued to assert that he was unable to work due to his service-connected major depressive disorder and lumbar degenerative disc disease, as indicated in an April 2016 correspondence. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based upon TDIU is part of an increased disability claim when such claim is expressly raised by the Veteran or reasonably raised by the record. As the Veteran continued to claim entitlement to a TDIU throughout the period on appeal, the Board finds that the issue of entitlement to a TDIU has been reasonably raised by the record and is, thus, properly before the Board. The appellant seeks entitlement to increased disability ratings for lumbar degenerative disc disease and radiculopathy of the right lower extremity, as well as entitlement to a TDIU. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. The increased rating claims were previously remanded by the Board in September 2020. At that time, the Board found that remand was necessary for a medical review of the Veteran’s file to obtain an opinion as to whether the Veteran’s medical records indicated a diagnosis for radiculopathy and if so, to ascertain the severity of the Veteran’s radicular symptoms prior to his death in August 2018. The Board found that remand was also necessary to obtain an opinion as to the severity of the Veteran’s lumbar spine degenerative disc disease prior to his death in August 2018. Pursuant to the Board’s September 2020 Remand directives, a VA opinion was obtained in November 2020. At that time, the VA clinician explained that: The veteran, definitively, was diagnosed with a radiculopathy per the record 12/10/9. EMG confirmed a L5 through S1 radiculopathy on the right. The DBQ noted all normal findings. Symptoms were reported as severe. Without the EMG, a diagnosis of radiculopathy could not be substantiated, due to an absence of objective findings, even with severe symptoms. However, the EMG is the sine qua non for diagnosing the right lower extremity radiculopathy (sciatic). Epidural injections are documented. There is a paucity of records, and none specifically addressing the severity of the radiculopathy, after the multiple records in 2010. In the absence of surgical intervention, a radiculopathy would not spontaneously resolve. The natural history of DDD and radiculopathy tends towards worsening. The rating for the 2010 level of severity would have been mild to moderate, due to the absence of objective findings, except the EMG. There is no evidence of significant muscle strength loss in the ensuing years. Therefore, it is at least likely as not that the severity of the radiculopathy and degenerative spine disease was moderate, at worst, at the time of the veteran's death in 2018. Severity of symptoms commonly exceeds objective findings. If evidence to the contrary, such as repeat EMG, evidence of muscle atrophy or loss of strength, or significant reflex changes, is available, this could alter this opinion, in favor of a moderately severe rating. Muscle atrophy or foot drop would allow a severe rating. In essence, the November 2020 VA clinician discussed specific clinical findings from 2009 and 2010 and extrapolated those findings to predict the severity of the Veteran’s symptomatology prior to his death in August 2018. The clinician did this due to a perceived “paucity” of treatment records relevant to the Veteran’s lumbar degenerative disc disease, and lack of any treatment records relevant to his radiculopathy, after 2010. However, the record reflects that the Veteran permanently relocated to Spain in or around 2011, after which time he continued to receive treatment for his service-connected lumbar degenerative disc disease and associated radiculopathy. Although these treatment records were originally written in Spanish when initially associated with the claims file, translated manuscripts were later obtained and associated with the claims file in August 2017. Treatment records from the Servicio Andaluz de Salud (Andalusian Health Services) dated in November 2013 diagnosed the Veteran as having axial and paraxial left lumbar pain as well as upper lumbar pain which worsened with standing and walking and upon getting out of bed. Magnetic resonance imaging (MRI) revealed “circumferential protrusion of the L2-L3 to the L5-S1, stenosis of the neural foramen, makes contact with the right emergent root of the left L4-L5 and right L-S1. Dextroconvex scoliosis.” With respect to radiculopathy, the November 2013 treatment note indicated that Lasègue's sign (straight leg raising test) was negative, although the maneuver in the right leg caused axial pain, while strength was conserved. Additionally, the Veteran reported “non-intentional trembling” in the right lower extremity. These findings were repeated in a February 2015 treatment note from Andalusian Health Service, at which time the Veteran was diagnosed as having lumbar sciatica. Treatment records further demonstrate that the Veteran was prescribed a combination of opioids and epidural steroid injections for lumbar sciatica throughout 2014 and 2016. A March 2016 consultation for chronic pain referenced electromyography (EMG) conducted in 2014 which revealed mixed sensitive motor polyneuropathy which was predominately demyelinating in the left leg. Another MRI was conducted in March 2016, which revealed lumbar scoliosis with left convexity. Significantly, it appears that these records from the Andalusian Health Service were not reviewed by the November 2020 VA clinician prior to rendering his opinions regarding the severity of the Veteran’s service-connected lumbar degenerative disc disease and associated radiculopathy. Crucially, these records included additional evidence, such as EMG findings, specifically referenced by the VA clinician as being potentially relevant to his analysis. As such, the Board finds that the November 2020 VA opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination or obtain a medical opinion, it must provide an adequate one). On remand, opinions must be obtained to determine the severity of the Veteran’s lumbar degenerative disc disease and lumbar radiculopathy prior to his death in August 2018 based on a review of all evidence of record, to include the translated treatment records from Andalusian Health Services. The matters are REMANDED for the following action: 1. Send the Veteran’s medical records to be reviewed by the examiner who provided the November 2020 opinion, or if unavailable, another qualified VA examiner, to determine the severity of the Veteran’s lumbar degenerative disc disease and lumbar radiculopathy prior to his death in August 2018. The claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examiner must provide an opinion as to the severity of the Veteran’s lumbar degenerative disc disease prior to his death in August 2018. The examiner must also provide an opinion as to whether the Veteran had a diagnosis of lumbar radiculopathy of the left lower extremity prior to his death in August 2018. In providing this opinion, the examiner is asked to specifically discuss the March 2016 Andalusian Health Services consultation for chronic pain which referenced electromyography (EMG) conducted in 2014 that revealed mixed sensitive motor polyneuropathy, predominately demyelinating in the left leg. If the examiner finds that the Veteran did not have a diagnosis for lumbar radiculopathy in the left lower extremity, then he/she must provide a rationale explaining the diagnosis in the Veteran’s medical records. If the examiner finds that the Veteran did have a diagnosis of lumbar spine radiculopathy of the left lower extremity, then the examiner must provide an opinion as to the severity of the Veteran’s radicular symptoms prior to his death in August 2018. The examiner must also provide an opinion as to the severity of the Veteran’s radicular symptoms in the right lower extremity prior to his death in August 2018. All relevant medical records must be made available to the examiner for review of pertinent documents, to include the translated documents from Andalusian Health Services associated with the claims file in August 2017. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 2. Thereafter, and after adjudicating the intertwined issues, adjudicate the issue of entitlement to a TDIU. If the Veteran does not meet the schedular requirement for a TDIU for any period on appeal (i.e., since January 2010), and if there is evidence of unemployability due solely to service-connected disabilities, consider whether to refer the matter to the Director, Compensation Services, for extraschedular consideration of a TDIU. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the appellant and her representative (if applicable) must be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.