Citation Nr: 21020877 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-21 130 DATE: April 8, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for a left shoulder disability is remanded. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to service connection for pain and numbness in right leg and foot, including as secondary to service-connected lumbar spine disability, is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1979 to March 1987, November 1990 to April 1991, and from December 2004 to May 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for low back and left shoulder disabilities and assigned 10 percent disability ratings, effective November 23, 2010, respectively. In an April 2020 rating decision, the RO increased the Veteran’s left shoulder disability to 20 percent, effective November 23, 2010. The Veteran and S.H. testified before the undersigned Veterans Law Judge (VLJ) at a hearing in May 2017. A copy of the transcript has been reviewed and associated with the claims file. These matters were previously before the Board in June 2018 and September 2020, at which time they were remanded for additional evidentiary development. While in remand status, in a December 2020 rating decision, the RO granted service connection for sinusitis and left lower extremity peripheral neuropathy. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to the claims of service connection for sinusitis and a left leg disability. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the initial ratings or effective dates assigned. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Thus, these issues are not in appellate status at this juncture. 1. Entitlement to an initial rating in excess of 20 percent for a left shoulder disability is remanded; 2. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is remanded; 3. Entitlement to service connection for pain and numbness in right leg and foot, including as secondary to service-connected lumbar spine disability, is remanded. After a review of the claims file, the Board finds that a remand is warranted in order for the RO to obtain the VistA images associated with the Veteran’s VA treatment records. Notably, an August 2014 MRI [Magnetic Resonance Imaging] of the lumbar spine, September 2020 community care pain management record, and various additional VistA imaging records are referenced throughout his VA treatment records. Moreover, the Board finds that a new VA examination and medical opinion should be obtained on remand with regard to the issue of service connection for pain and numbness in the right leg and foot. In this regard, in December 2017, the Veteran reported radicular symptoms in both legs and a positive straight leg raising test was recorded. The Veteran subsequently underwent a VA examination in October 2020, at which time the examiner indicated that there was no current disability because the Veteran denied having right leg or foot pain during the examination. The examiner indicated that positive straight leg test results may correlate with nerve root irritation which can be seen in lumbar radiculopathy. However, the examiner did not discuss or acknowledge the December 2017 straight leg test for his right leg and his complaints of radicular pain. Accordingly, the Board finds that a new VA examination is warranted on remand in order to determine the nature and etiology of any right leg or foot pain. Moreover, the RO should obtain and associate with the claims file the VistA images associated with the Veteran’s VA treatment records. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from September 2020 to the present. 2. Obtain and associate with the claims file the VistA images associated with the Veteran’s VA treatment records from 2006 to the present, including, but not limited to: the August 2014 MRI of the lumbar spine and the September 2020 community care pain management record. 3. After completion of #1 and #2, schedule a VA examination with an examiner who has not previously provided an opinion in this matter, to determine the nature and etiology of any right foot pain and numbness. The claims file, including a copy of this remand, should be reviewed and such review should be noted in the examination report. The examiner should identify and discuss any pain or numbness of the right leg or foot identified during the pendency of this claim (2010) and/or during the examination, including the radicular pain and positive straight leg test recorded in December 2017. A. For any diagnosed disability, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s right foot and leg numbness and pain was caused by his service-connected lumbar spine disability? If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s right foot and leg numbness and pain has been aggravated (any incremental increase in disability) as a result of his service-connected lumbar spine disability? If aggravation is found, is there evidence created prior to the aggravation or between the aggravation and right foot and leg numbness and pain that shows a baseline of his right foot and leg numbness and pain prior to aggravation? If so, please identify. B. If the Veteran’s numbness and pain of his right foot and leg was not caused and/or aggravated by his service-connected lumbar spine disability, then is it at least as likely as not (probability of at least 50 percent) that any diagnosed disability had its onset in and/or is otherwise etiologically related to his period of active service? C. With regard to the Veteran’s complaints of bilateral foot and leg pain, if there is no diagnosed disability, is it at least as likely as not (a 50 percent probability or more) that any pain reaches the level of functional impairment of earning capacity? If so, describe the impairment caused and whether such impairment is etiologically related to his lumbar spine disability and/or had its onset in service. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should discuss the Veteran’s July 1986 service-treatment record indicating his complaints of tingling in his legs associated with his back pain. Furthermore, the examiner should discuss the positive straight leg raising test in December 2017 and his VA treatment records noting a neurological disorder due to degeneration of the intervertebral disc. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.