Citation Nr: 21026549 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-25 180 DATE: May 3, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent prior to August 18, 2015 and in excess of 40 percent thereafter for status post posterior fixation with retained surgical hardware, loss of intervertebral disc space, retrolisthesis, and lumbus vertebra of the lumbar spine (lumbar spine disability) is remanded. Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia, medial tibiofemoral joint space loss (left knee chondromalacia) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1987 to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA). This case was remanded in February 2019 for further development. In January 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that, in February 2019, it took limited jurisdiction of the issues of service connection for chronic pain syndrome, post concussive headache syndrome, sleep apnea, and traumatic brain injury (TBI) and entitlement to special monthly compensation (SMC) based on need for aid and attendance pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Upon review of the Board's decision and remand of February 2019 it is noted that the Board's Manlincon discussion of these issues was inexplicably removed prior to dispatch of the decision. Indeed, the paragraph discussing the service connection and SMC issues was somehow deleted (along with its header). It is noted that there was also substantive discussion that these issues were not yet perfected during the Veteran's January 2019 Board hearing. Lastly, limited jurisdiction is evidenced by the remand directive ordering a statement of the case (SOC) for these issues. Thus, the Board only took limited jurisdiction of these issues in February 2019. Regardless of the above, it appears that subsequent to the issuance of the Board's February 2019 decision and remand, a document showing that the Veteran opted these issues into the legal framework created by the Appeals Modernization Act (AMA), by choosing to participate in VA's test program RAMP, the Rapid Appeals Modernization Program, was associated with the file. See February 2019 RAMP opt-in. While the opt-in was dated prior to the Board's decision by a mere twelve days, it had not been associated with the record at the time the decision was issued. The Agency of Original Jurisdiction (AOJ) adjudicated these issues pursuant to RAMP in June 2020, July 2020, and October 2020 rating decisions (there were full grants of service connection for headaches and chronic pain syndrome in July 2020). As a result, the issues of service connection for sleep apnea and TBI, and entitlement to SMC based on need for aid and attendance, are not before the Board. If the Veteran disagrees with those decisions, there is still time to seek review pursuant to the options provided in the notification letters for those decisions. In its February 2019 remand, the Board also remanded the issue of an increased rating for right lower extremity discogenic disease with interverbal disc syndrome pursuant to Manlincon. This issue was also opted into the AMA legal framework pursuant to RAMP in February 2019. As a result, while the Board may have attempted to take limited jurisdiction of the issue in its February 2019 remand, it may not do so as the RAMP opt-in predated the remand. The Board notes that the AOJ did not adjudicate the issue in its RAMP rating decisions and the Veteran may resubmit the claim to the AOJ or notify the AOJ that the issue is still pending. 1. Entitlement to an increased rating in excess of 20 percent prior to August 18, 2015 and in excess of 40 percent thereafter for a lumbar spine disability. During an August 2020 VA examination, the examiner diagnosed bilateral lower extremity femoral radiculopathy. In an October 2020 rating decision, the AOJ granted service connection for left and right leg femoral nerve radiculopathy, effective August 26, 2020. While the Veteran has reported leg symptoms, see, e.g., August 2015 VA spine examination, he is also already service-connected for bilateral lower extremity sciatic radiculopathy (previously characterized as discogenic disease) during the entire appeal period. When assigning a rating for a lumbar spine disability, the Board must consider any associated objective neurologic abnormalities. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). As a result, the Board must determine whether the Veteran had femoral nerve radiculopathy prior to the August 2020 VA examination. Because it is unclear whether the Veteran had femoral nerve radiculopathy prior to August 2020, remand for an opinion is necessary. 2. Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia. The Board remanded this matter for compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). See February 2019 Board remand. An August 2020 VA examiner opined that passive range of motion could not be performed or was not medically appropriate. Because it is unclear why passive range of motion measurements were not provided, remand for a new examination is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from September 2020 to the present. 2. After the above development is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected lumbar spine disability and any radiculopathy resulting therefrom. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. In addition, the examiner is requested for respond to the following: Has the Veteran had bilateral lower extremity femoral nerve radiculopathy since January 2013? Please explain why. The examiner must discuss lay reports of extremity pain and may not rely solely on the lack of a diagnosis in earlier VA examinations without further explanation. As necessary, the examiner should discuss the Veteran's already service-connected bilateral lower extremity sciatic nerve radiculopathy. 3. After the development in the first directive is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected left knee disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If passive range of motion cannot be completed, the examiner must explain why. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.