Citation Nr: 21026442 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-33 380 DATE: May 3, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to January 8, 2020, and in excess of 20 percent thereafter, for service-connected degenerative disc disease of the lumbar spine (lumbar spine disability) is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected left lower extremity sciatic radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected right lower extremity sciatic radiculopathy is remanded. Entitlement to a compensable rating prior to January 8, 2020, and in excess of 10 percent thereafter, for service-connected left lower extremity femoral radiculopathy is remanded. Entitlement to a compensable rating prior to January 8, 2020, and in excess of 10 percent thereafter, for service-connected right lower extremity femoral radiculopathy is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from May 1975 to July 1992. In September 2018, the appeal was remanded for further development. The decision included the issues of earlier effective dates for radiculopathy of the left, right lower extremity, and lumbar spine disability, and entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU). In the remand, the agency of original jurisdiction (AOJ) was instructed to issue a statement of the case (SOC) regarding the earlier effective date claims. It also noted that the Veteran was required to perfect his appeal to place the claims in appellate status. The Board notes that, in February 2020, the AOJ issued the SOC; however, the Veteran did not perfect his appeal related to those issues by filing a timely VA Form 9. Therefore, the issues are not in appellate status. In a May 2020 rating decision, the AOJ granted a separate evaluation for bilateral lower extremity femoral radiculopathy, with a 10 percent rating effective January 8, 2020. Given that the May 2020 decision arose out of the Veteran's claim for a higher rating for his service-connected lumbar spine disability, the Board has added the issues of entitlement to a compensable rating prior to January 8, 2020, and in excess of 10 percent thereafter, for service-connected bilateral lower extremity femoral radiculopathy to the present appeal. In a June 2020 rating decision, the AOJ increased the rating for the Veteran's degenerative disc disease of the lumbar spine to 20 percent effective January 8, 2002. As this is not a full grant of the benefits sought on appeal, the claim remains in appellate status. In the same decision, the RO granted TDIU, effective January 24, 2015. This constitutes a full grant of benefits sought as to this issue; therefore, the issue is no longer in appellate status. Increased Ratings Unfortunately, a review of the claims file reveals that remand is necessary once again. Consistent with the September 2018 remand, the Veteran was afforded another VA examination in connection with his claims in January 2020. In pertinent part, although the examiner indicated there was pain on weight-bearing, she did not conduct full testing in compliance with Correia v. McDonald, 25 Vet. App. 158 (2016). Rather, she indicated either the testing could not be performed or it was not medically appropriate; unfortunately, she provided no explanation as to why such was the case. In Correia, the Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. Therefore, a remand is necessary to address the required testing criteria, and if it cannot be performed, the examiner must provide a full explanation as to why not. With regard to the Veteran's claims for increased ratings for his service-connected radiculopathies the bilateral lower extremities, such are inextricably intertwined with the increased rating claim for his lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). As such, the Board will defer consideration of those issues at this time. On remand, the AOJ should associate with the claims file any outstanding VA treatment records. Additionally, the Veteran should be given the opportunity to provide any additional evidence in support of the claims on appeal. The matters are REMANDED for the following action: 1. Obtain a complete copy of all VA treatment records dated since June 2020. 2. Give the Veteran an opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the appropriate authorization is provided. 3. The Veteran should then be a VA examination to ascertain the severity and manifestations of his service-connected lumbar spine disability and radiculopathies the bilateral lower extremities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the lumbar spine disability and radiculopathy under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the lumbar spine. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also indicate on whether there is any form of ankylosis. In addition, the examiner should state the total duration of incapacitating episodes over the past 12 months and identify all neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors and any flare-ups. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or non weight-bearing can be estimated for the VA examinations conducted in January 2020. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. Related to the Veteran's service-connected radiculopathy of the left and right lower extremity, the examiner should report all signs and symptoms necessary for rating the disabilities. In particular, the examiner should identify the affected nerve or nerve group. For each nerve or nerve group affected, the examiner should indicate whether the impairment is mild, moderate, moderately-severe, or severe. He or she should also state whether there is incomplete or complete paralysis. To the extent possible, the examiner should distinguish the symptomatology attributable to each nerve. If the examiner is unable to distinguish the symptoms attributed to each nerve, the examiner should so state in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Thereafter, the appeal should be readjudicated. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.