Citation Nr: 21027036 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-04 980 DATE: May 4, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral syndrome is remanded Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbosacral spine is remanded. Entitlement to an effective date earlier than October 26, 2015, for the grant of service connection for bilateral lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1972 to January 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2013, the RO granted service connection for degenerative disc disease and degenerative joint disease of the lumbosacral spine with radiculopathy and assigned an effective date of January 11, 1985. In January 2016, the RO granted service connection for left knee patellofemoral syndrome and service connection for right and left leg radiculopathy and assigned an effective date of October 26, 2015. This case was previously before the Board in September 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims and to afford him every possible consideration. 1. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. 2. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. 3. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. September 2016 VA treatment records demonstrate the Veteran had an outside physician in pain management who put forward a plan to "burn nerve endings" related to his pain with radiation down his legs. In February 2017 it was noted he sought care for his back pain through civilian providers. In March 2018 it was noted he was scheduled with civilian neurosurgery for spinal surgery, it was noted he was taking Lyrica outside the VA, and he was previously on Oxycodone from a non-VA source. In August 2018 it was noted he underwent left lower extremity surgery and right lower extremity intervention by Dr. P. However, the records associated with this treatment are not in the claims file. This evidence could bear on the outcome of the Veteran's appeal, as such efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). 4. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbosacral spine is remanded. The Veteran was afforded a VA examination in June 2019. The examiner stated the Veteran did not report flare-ups of the thoracolumbar spine. However, the Veteran reported flare-ups to the October 2015 examiner. Further, August 2018 VA treatment records demonstrate the Veteran had lumbar surgery in June 2018. Because the June 2018 surgery may have altered the Veteran's function in respect to flare-ups an addendum opinion is necessary to determine the Veteran's functional ability during a flare up prior to the June 2019 VA examination. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). 5. Entitlement to an effective date earlier than October 26, 2015, for the grant of service connection for bilateral lower extremity radiculopathy is remanded. In connection with the Veteran's claim he was afforded a VA examination in August 2020. The examiner stated that any confirmed radiculopathy arose after a November 2015 EMG. The examiner noted that the Veteran had no evidence of any neuropathy or radiculopathy on EMG in November 2012 and November 2015. November 2012 VA treatment records contain the results of the November 2012 EMG. However, a review of the current record does not reveal the presence of a November 2015 EMG. Further the June 2019 examiner noted that no EMG studies had been performed, which questions if the June 2019 examiner had access to a November 2015 EMG. Because the November 2015 EMG was relied upon by the August 2020 examiner, and the results are not present in the record, a remand is necessary in order to attempt to obtain such evidence. See, e.g., 38 C.F.R. § 3.159(e)(2). The matters are REMANDED for the following action: 1. Ask the Veteran to provide releases for relevant records of treatment from his outside physician in pain management, his civilian providers for his back pain, his civilian neurosurgeon, the outside VA prescription for Lyrica and Oxycodone, records from Dr. P, and a November 2015 EMG. If he provides the necessary release, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran, and his representative should be notified 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. If the AOJ is not able locate the results from the November 2015 EMG, and ensure it is part of the record, the AOJ should consider the need for an addendum opinion regarding entitlement to an effective date earlier than October 26, 2015, for the grant of service connection for bilateral lower extremity radiculopathy. 4. After the foregoing development has been completed, make arrangements to return the Veteran's claims file to the VA examiner who examined the Veteran in June 2019. The examiner should be asked to review the record for purposes of providing a retrospective opinion with respect to the severity of the Veteran's degenerative disc disease of the lumbosacral spine disability prior to the June 2019 examination. Specifically, the examiner should be asked to indicate whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that, during all or any portion of the period in question from February 1, 2010, the Veteran had pain in the lumbosacral spine on active motion, passive motion, in weight bearing, and in non-weight bearing. The examiner should also be asked to indicate whether it is at least as likely as not that, during all or any portion of the period in question from February 1, 2010, the Veteran experienced functional loss in the lumbosacral spine due to flare-ups and repeated use over time. If the answer to that question is yes, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. In so doing, the examiner should discuss the medical significance, if any of the June 2018 lumbosacral surgery and the Veteran's prior reports of flare-ups. If the June 2019 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. Governing law requires that if a veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time when examined, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. (Continued on the next page) That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Roya Bahrami Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.