Citation Nr: 21028237 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 07-15 025 DATE: May 10, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent prior to December 6, 2010; in excess of 40 percent from December 6, 2010 through March 8, 2015; and in excess of 60 percent from March 9, 2015, for service-connected degenerative joint/disc disease, scoliosis, facet joint arthropathy, degenerative arthritis and intervertebral disc syndrome with bilateral lower extremity radiculopathy (lumbar spine disability) is remanded. Entitlement to an initial compensable rating prior to July 9, 2014, in excess of 10 percent from July 9, 2014 through March 9, 2015, and a compensable rating thereafter for service-connected sciatic nerve radiculopathy, left lower extremity, is remanded. Entitlement to an initial compensable rating prior to July 9, 2014, in excess of 10 percent from July 9, 2014 through March 9, 2015, and a compensable rating thereafter for service-connected sciatic nerve radiculopathy, right lower extremity, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to August 13, 2009, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to May 1986. These matters initially come before the Board of Veterans' Appeals (Board) from a November 2005 rating decision, in which the agency of original jurisdiction (AOJ) awarded service connection for back pain, low back strain, and assigned an initial noncompensable disability rating, from January 10, 2000. In April 2007, a Decision Review Officer (DRO) assigned a 10 percent rating for the service-connected back disability, from January 10, 2000. In February 2008, a DRO assigned a 20 percent rating for the service-connected back disability, from January 10, 2000. In January 2013, a DRO assigned a 40 percent rating for the service-connected back disability, from December 6, 2010. In May 2015, a DRO re-characterized the Veteran's service-connected back disability as degenerative joint disease, scoliosis, and disc disease with intervertebral disc syndrome and assigned a 60 percent rating, from March 9, 2015. In April 2017, the Board remanded the issues of entitlement to a higher initial rating for the service-connected back disability, entitlement to a separate compensable disability rating for radiculopathy of the bilateral lower extremities, and entitlement to a TDIU for further development. In March 2018, the Board denied entitlement to a higher initial rating for the service-connected back disability, awarded a TDIU from December 6, 2010, and remanded the issue of entitlement to a TDIU prior to December 6, 2010 for further development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court set aside the Board's March 2018 decision, in part, and remanded to the Board the issue of entitlement to a higher initial rating for the service-connected back disability (to include the issue of whether a separate compensable rating for radiculopathy of the bilateral lower extremities was warranted) for readjudication in compliance with directives specified in an August 2019 Joint Motion filed by counsel for the Veteran and VA. This appeal was previously before the Board in April 2020, at which time the issue on appeal was characterized as "Entitlement to an initial rating in excess of 20 percent prior to December 6, 2010; in excess of 40 percent from December 6, 2010 to March 8, 2015; and in excess of 60 percent thereafter from March 9, 2015, for service-connected lumbar spine disability, to include the issue of whether a separate compensable rating for radiculopathy of the bilateral lower extremities is appropriate." This matter was remanded for further development. The appeal also included the issue of entitlement to service connection for a heart disorder, to include dilated cardiomyopathy. Thereafter, in a July 2020 rating decision, the AOJ awarded service connection for cardiomyopathy. This represents a full grant of the benefit sought on appeal as to the issue of service connection for cardiac disability; therefore, the appeal as to that issue has been resolved and it is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In a December 2020 rating decision, the AOJ awarded separate 10 percent disability ratings for bilateral lower extremity radiculopathy, effective from July 9, 2014 through March 9, 2015. The AOJ also assigned an effective date of November 25, 1996 for the award of service connection for the service-connected back disability. A 20 percent rating was assigned from November 25, 1996 through December 5, 2010, a 40 percent rating was continued from December 6, 2010 through March 8, 2015, and a 60 percent rating was continued from March 9, 2015. As such, the Board has re-characterized the issues on appeal as reflected on the title page. Lastly, the Veteran is now in receipt of a 100 percent disability rating and special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), from August 13, 2009. Therefore, the issue of entitlement to a TDIU from August 13, 2009 through December 5, 2010 is moot. The TDIU issue has been re-characterized as entitlement to a TDIU, prior to August 13, 2009. 1. Increased Ratings The most recent VA examination to assess the nature and severity of the Veteran's service-connected back disability was in May 2015, and it was noted that he had no bowel or bladder impairment associated with his service-connected lumbar spine disability. Subsequent evidence of record, including a May 2020 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, indicated that he experiences loss of bladder control. In order to ascertain the current nature and severity of the Veteran's back disability, to include any possible neurological manifestations such as any bladder impairment, the Board finds that a more contemporaneous examination is needed. See Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Specifically, the most recent VA treatment records in the claims file are from the Tennessee Valley Healthcare System (dated to February 2020) and the VA Pittsburgh Health Care System (dated to September 2017). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. 2. TDIU At this time, the Board will defer further consideration of the Veteran's claim for a TDIU prior to August 13, 2009, as such is inextricably intertwined with his claim for higher ratings. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the Tennessee Valley Healthcare System for the period since February 2020; the VA Pittsburgh Health Care System for the period since September 2017; and all such relevant records from any other sufficiently identified VA facility. 2. Give the Veteran an additional 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 Veteran provides the appropriate authorization. 3. After completing the above development, the Veteran should be scheduled for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected back disability and bilateral lower extremity radiculopathy. The entire record must be made available to and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his service-connected back disability and bilateral lower extremity radiculopathy, to include any neurological manifestations in his lower extremities and/or any associated bladder or bowel impairment. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following inquiries: a) The examiner should describe all pertinent orthopedic and neurologic symptoms associated with the Veteran's service-connected back disability and radiculopathy. In doing so, please address the May 2020 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, indicating that he experiences loss of bladder control. The examiner should also ask the Veteran to provide a history as to the nature and severity of his service-connected back disability and bilateral lower extremity radiculopathy. b) With regard to the lower extremity radiculopathy, the examiner should indicate whether there is complete or incomplete paralysis of the affected nerve(s) and, if so, the examiner should describe the severity of the impairment as mild, moderate, moderately-severe, or severe with marked muscular atrophy. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 4. Thereafter, and after any further development deemed necessary, the issues on appeal, including entitlement to a TDIU prior to August 13, 2009, should be readjudicated. With regard to the rating assigned to the Veteran's service-connected back disability, consideration must be given to both the former (pre-September 26, 2003) and current (post-September 26, 2003) rating criteria for evaluating general diseases and injuries of the spine. For all times prior to September 26, 2003, only the former rating criteria can be applied. (CONTINUED ON NEXT PAGE) For all times from September 26, 2003, both the former and current rating criteria for evaluating general diseases and injuries of the spine are applicable. The more favorable criteria should be applied. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.