Citation Nr: 21028099 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-03 738A DATE: May 10, 2021 REMANDED A rating in excess of 20 percent for invertebral disc syndrome (IVDS) with degenerative arthritis of the lumbar spine is remanded. A rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded. A rating in excess of 10 percent for right radiculopathy with femoral nerve involvement is remanded. A rating in excess of 10 percent for femoral nerve radiculopathy of the left lower extremity is remanded. A rating in excess of 10 percent for left sciatic radiculopathy is remanded. A rating in excess of 10 percent for tendonitis of the right wrist is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1995 to December 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 and March 2018 rating decisions by the Department of Veterans Affairs (VA). This case was remanded in November 2018 and March 2020 for further development; it has since been re-assigned to the undersigned. In May 2018, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) no longer at the Board; a transcript of that hearing is of record. In January 2021, the Veteran was offered the opportunity to testify at a hearing before another VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Because the Veteran did not respond to this letter within 30 days and no other indication the Veteran requests another hearing, the Board will proceed with adjudication. The Board finds that further development is needed before it can proceed with adjudication. As stated above, the Board remanded this matter in March 2020 for further development. However, remand is again needed to address several procedural issues and to comply with the March 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's representative initially listed an address as a P.O. Box in Seattle, WA as his address on the VA Form 21-22a, Appointment of Individual as Claimant's Representative, filed in April 2014. Upon review of the claims file, the Board finds that copies of a January 2020 notification letter, August 2020 rating decision, and September 2020 notification letter, were all returned as undeliverable mail, sent to a different address than the one listed on the April 2014 VA Form 21-22a. It is also not clear whether the Veteran's representative received a copy of the March 2020 Board remand. When a rating decision notification letter, SOC or SSOC is issued, the agency of original jurisdiction (AOJ) must generally furnish the SOC or SSOC to the appellant and his or her representative, if any. See 38 C.F.R. §§ 19.30, 19.31. Further, in order to fulfill its responsibilities under 38 U.S.C. § 5104(a) to provide an appellant with notice of a BVA decision, the Board must "promptly mail a copy of its written decision to the [appellant]... at the last known address of the [appellant]...." 38 U.S.C. § 7104(e). Clark v. Principi, 15 Vet. App. 61, 63 (U.S. 2001); see also Cross v. Brown, 9 Vet. App. 18 (1996) (Secretary failed to prove compliance with requirement that BVA mail copy of its decision to claimant's last known address where decision mailed to claimant's initial address was returned as undeliverable but later material in claimant's file disclosed other possible and plausible addresses). Considering the foregoing, the Board finds that prior to adjudication of this appeal, the appeal must be remanded so the AOJ can verify and update the Veteran's representative's address and attempt to mail him the following documents again: the January 2020 notification letter, the March 2020 Board remand, the August 2020 rating decision, and the September 2020 notification letter. Further, in July 2019 correspondence, the Veteran requested the curriculum vitae (CV) of his June 2019 VA examiner. VA is presumed to have properly chosen examiners who are qualified to provide competent medical evidence. However, if the Veteran wants to challenge the competency of an examiner, the Veteran may request the curriculum vitae and other information about the qualification of a medical examiner. Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir., 2019). In September 2019, the Veteran was provided with a copy of the June 2019 VA examination but was not provided the requested CV of the VA examiner. Therefore, the claim must be remanded for efforts to be made to obtain and provide the requested information to the Veteran. 1. A rating in excess of 20 percent for invertebral disc syndrome (IVDS) with degenerative arthritis of the lumbar spine is remanded. In the March 2020 remand order, the Board directed the AOJ to obtain a VA examination to evaluate the Veteran's lumbar spine disability. The examination must include range of motion testing for 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, he or she should clearly explain why. The Veteran underwent a back VA examination in July 2020. The examination report notes that there was objective evidence of pain on passive range of motion testing and non-weight-bearing. However, no range of motion measurements for non-weight-bearing were provided. VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the VA examination does not fully comport with the requirements of Correia. Thus, remand is necessary for a new VA examination. 2. A rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded. 3. A rating in excess of 10 percent for right radiculopathy with femoral nerve involvement is remanded. 4. A rating in excess of 10 percent for femoral nerve radiculopathy of the left lower extremity is remanded. 5. A rating in excess of 10 percent for left sciatic radiculopathy is remanded. The Board notes that the appealed ratings include 20 percent for right lower extremity radiculopathy pursuant to Diagnostic Code (Code) 8520 beginning March 27, 2013, and 10 percent for left lower extremity radiculopathy pursuant to Code 8526 beginning March 7, 2017. The Veteran underwent a VA examination in July 2020. In August 2020, a rating decision was issued granting service connection for right radiculopathy with femoral nerve involvement with a rating of 10 percent under a separate Code, Code 8726, beginning July 9, 2020, and granting service connection for left sciatic radiculopathy with a rating of 10 percent also under a separate Code, Code 8720. An August 2020 Supplemental Statement of the Case (SSOC) denied a rating in excess of 20 percent for right lower extremity radiculopathy under Code 8520 and denied a rating in excess of 10 percent for left lower extremity radiculopathy under Code 8526. The Board finds that the issues of right radiculopathy with femoral nerve involvement under Code 8726 and left sciatic radiculopathy under Code 8720 are part and parcel of the increased rating claims on appeal and are currently before the Board. See Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. April 16, 2021). Notwithstanding the grant of service connection for bilateral radiculopathy under additional Codes and the denial of an increased rating for the Veteran's initially appealed bilateral radiculopathy under Codes 8520 and 8526, the Board finds that remand is required for compliance with the March 2020 remand order. In the March 2020 remand order, the Board directed the AOJ to obtain a VA examination to evaluate the Veteran's bilateral radiculopathy. The examiner must attempt to resolve the discrepancy between the March 2017 VA spine examination reflecting diagnosis of radiculopathy and the extensive history of radiculopathy of the bilateral lower extremities and the June 2019 VA spine examination reflecting the Veteran does not have a diagnosis of radiculopathy of the bilateral lower extremities. The Veteran underwent a VA examination in July 2020. The examiner found that the Veteran had bilateral lower extremity radiculopathy, moderate at the right (sciatic) and severe at the left (femoral and sciatic). Regarding the discrepancy noted in the remand order, the examiner stated "the symptoms may have intermittently subsided at the time of the June 2019 examination. Radicular pain can temporarily subside briefly. When this happens, often a cause for the amelioration of pain is not always known." The Board finds this rationale to be inadequate. The June 2019 VA examiner determined that the Veteran did not suffer from radiculopathy based on 2003 and 2014 EMG/NCV testing. The July 2020 examiner did not provide any detailed explanation or rationale regarding the June 2019 examiner's findings and the discrepancy with the March 2017 examiner's findings. Further, the July 2020 examiner's findings do not indicate the date the Veteran's radicular symptoms manifested and the severity of his symptoms throughout the appeal period. As such, remand is required for an addendum opinion. 6. A rating in excess of 10 percent for tendonitis of the right wrist is remanded. In the March 2020 remand order, the Board directed the AOJ to obtain a VA examination to evaluate the Veteran's right wrist disability. The examination must include range of motion testing for 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, he or she should clearly explain why. The Veteran underwent a wrist VA examination in July 2020. The examination report notes that there was objective evidence of pain on passive range of motion testing and non-weight-bearing. However, no range of motion measurements for non-weight-bearing were provided. VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the VA examination does not fully comport with the requirements of Correia. Thus, remand is necessary for a new VA examination. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The matter of entitlement to TDIU is inextricably intertwined with the Veteran's other remanded issues; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. The AOJ should verify and update the Veteran's representative's address and attempt to mail the representative the following documents again at the updated address, if any: the January 2020 notification letter, the March 2020 Board remand, the August 2020 rating decision, and the September 2020 notification letter. Please permit the Veteran and his representative 30 days from the date those documents are provided to respond if they wish to do so. 2. The AOJ should obtain and associate with the claims file, the curriculum vitae (CV) the medical examiner who prepared a VA compensation back and wrist reports, My G. Nguyen, M.D. If the CV cannot be obtained and made available for review in the claims file, this fact should be clearly documented in the claims file along with an explanation of the reasons for the unavailability. 3. The AOJ should obtain updated VA and non-VA treatment records. 4. The AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected lumbar spine 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 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. The examiner should identify and comment on the existence, frequency, or extent of, as appropriate, any neurological manifestation(s) of lumbar disability, to include radiculopathy of the bilateral extremities, and provide an assessment of each such manifestation as mild, moderate, moderately severe, or severe. In doing so, the examiner should attempt to resolve the discrepancy among the March 2017, June 2019, and July 2020 VA examinations. The examiner should state, to the best of his or her ability, the date at which the right and left lower extremity radiculopathy was first detectable and the corresponding degree of severity of the Veteran's radicular symptoms at that time, as well as the degree of severity of the Veteran's radicular symptoms throughout the period on appeal. 5. 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 right wrist 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 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. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Kerner, 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.