Citation Nr: 21028486 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-28 062 DATE: May 11, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine (back disability) from November 1, 2012, to April 27, 2015, and from July 1, 2015, is denied. Entitlement to an extension of temporary total evaluation past November 1, 2012, based on convalescence after lumbar fusion surgery in May 2012 is denied. REMANDED Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a total rating based on individual unemployability (TDIU) prior to September 13, 2018, is remanded. FINDINGS OF FACT 1. From November 1, 2012, to April 27, 2015, and from July 1, 2015, the preponderance of the evidence shows that the back disability is not manifested by at least forward flexion of the thoracolumbar spine being 30 degrees or less even nor ankylosis even when considering the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor ankylosis or incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks during a 12-month period at all times during the pendency of the appeal when not considering the time he was recuperating from his 2012 back surgery and for which he was already granted a 100 percent rating. 2. From November 1, 2012, the preponderance of the evidence shows that the post-operative residuals of the Veteran's may 2012 back surgery did not include severe postoperative residuals such as an incompletely healed surgical wound, a need for therapeutic immobilization of the joint, a need for house confinement, problems with a stump, the need for a body cast, or the need for the continued use of a wheelchair or crutches because regular weight bearing is prohibited. CONCLUSIONS OF LAW 1. From November 1, 2012, to April 27, 2015, and from July 1, 2015, the criteria for a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5237 to 5243. 2. The criteria for extension of temporary total evaluation past November 1, 2012 for convalescence following lumbar fusion surgery in May 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1976 to November 1996. This matter comes before the Board of Veterans' Appeals (Board) from the June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2016 rating decision, the Regional Office (RO) changed the Veteran's original rating for the evaluation of his DDD of the lumbosacral spine with radiculopathy of the left leg from a single 40 percent evaluation to individual ratings for the Veteran's back disability and bilateral radiculopathy in the lower extremities. Therefore, the issues on appeal are characterized as they appear above. In October 2018, the Board of Veterans' Appeal (Board) remanded the appeal. In a December 2020 rating decision, the RO granted entitlement to a TDIU effective from September 13, 2018. However, because the appeal has been pending since 2012, the Board finds that it still has jurisdiction over the claim for a TDIU prior to September 13, 2018. See AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Post-Remand Compliance The Board finds that the post-remand development substantially complied with the Remand directives. The Board has reached this conclusion because while the appeal was in remand status all outstanding, available, and records were obtained and associated with the claims file. The Board has also reached this conclusion because the post-Remand VA examination dated in May 2019 provided information needed to rate the Veteran's back disability including in accordance with the United States Court of Appeals for Veterans Claims (Court) holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) because range of motion studies taken at the examinations considered, among other things, the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Increased Rating Claim The Veteran contends that he is entitled to higher ratings for his lumbar disability and left lower radiculopathy, and that his total temporary evaluation due to his May 2012 lumbar fusion surgery should extend beyond November 1, 2012. The Veteran contends that his back disability is more severely disabling than represented by the rating assigned at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran's back disability is rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Initially, the Board notes that since the appeal was last before the Board VA amended some of its' criteria for rating musculoskeletal disabilities including the back under 38 C.F.R. § 4.71a, effective February 7, 2012. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). However, the Board finds that a Remand is not required to provide the appellant with notice of the new musculoskeletal rating criteria and for the RO to adjudicates the claim applying the new criteria. The Board has reached this conclusion because it finds that nothing in the new criteria changes how this Veteran's back disability is rated and, therefore, he will not be prejudiced by it adjudicating this claim at this time. See Sabonis, supra. Under the old and new rating criteria the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; a 40 percent rating if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Moreover, under the old and new rating criteria, both of which apply to the claim given the diagnoses of intervertebral disc syndrome found in the record, the Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. Initially, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for his back disability, the Board has not overlooked the Court's holdings in Correia, supra, and Sharp, supra. Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases. Specifically, the Board finds that the May 2019 VA examination provided VA with medical opinion evidence adequate to rate the Veteran's disability when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). As to a rating in excess of 20 percent for the back disability under the General Rating Formula for Disease and Injuries of the Spine, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in DeLuca, Mitchell, Burton, Southall-Norman, Correia, supra, and Sharp, as well as when considering the appellant's competent reports of his observable adverse symptomatology, he does not meet the criteria for at least a 40 percent rating because at its worst flexion of the thoracolumbar spine was 48 degrees (see VA examination dated in August 2012 (flexion of the thoracolumbar spine was 70 degrees), BDQ dated in May 2017 (flexion of the thoracolumbar spine was 48 degrees), and VA examination dated in May 2019 (flexion of the thoracolumbar spine was 70 degrees)) and not the 30 degrees or less required for an increased rating at any time during the appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242; Fenderson, supra; Hart, supra. Similarly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability under the General Rating Formula for Disease and Injuries of the Spine since filing his claim for an increased rating because the record is negative for a diagnosis of ankylosis of the thoracolumbar spine. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; VA examinations dated in August 2012 and May 2019. In fact, at the May 2019 VA examination it was opined that he did not have ankylosis and this medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability under the Formula for Rating Intervertebral Disc Syndrome at any time since filing his claim because the most probative evidence of record shows his back disability did not cause incapacitating episodes having a total duration of at least 4 weeks during any 12-month period. 38 C.F.R. § 4.71a, Diagnostic Code 5243; Fenderson, supra; Hart, supra. In reaching this conclusion the Board has not overlooked the fact that the August 2012 VA examiner reported that the Veteran had six weeks of incapacitating episodes in 2012. However, the Board finds that this opinion is not probative because it is not supported by the record. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Specifically, a review of the record on appeal does not document any weeks of incapacitating episodes due to his back disability that are not related to his 2012 back surgery and for which the RO already granted him a 100 percent rating. Therefore, to grant an increased rating under the Formula for Rating Intervertebral Disc Syndrome based on this same bedrest would violate the rule against pyramiding. 38 C.F.R. § 4.14. Likewise, while the May 2017 BDQ reported that the Veteran had 4 weeks of incapacitating episodes, the Board likewise does not find this opinion credible because it is also not supported by the appellant's treatment records. See Madden, supra. In reaching the above conclusions, the Board has not overlooked the claims from the Veteran regarding his back's adverse symptomatology. See Davidson, supra. The Board has also not overlooked the treatment records that document his complaints and treatment for his back disability. However, the Board finds the VA examiners opinions as to the Veteran's adverse back symptomatology more probative than any lay claims from the appellant to the contrary even though his symptomatology is observable by a lay person because the examiners have medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The Board also finds that not in the treatment records shows his adverse back symptomatology to be worse than reported by his VA examiners. See Colvin, supra. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. The Temporary Total Evaluation Extension Claim The Veteran is seeking an extension of temporary total evaluation past November 1, 2012, based on convalescence after lumbar fusion surgery. Under 38 C.F.R. § 4.30, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a) (1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. Under 38 C.F.R. § 4.30(a), total ratings will be assigned under this section if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); and (3) Immobilization by cast, without surgery, of one major joint or more. Extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraph (a) (1), (2) or (3). 38 C.F.R. § 4.30(b)(1). Additionally, extensions may be granted in increments beyond the initial grant, up to one year. Id. In this regard, the record shows that in May 2012 the Veteran underwent lumbar fusion surgery. Moreover, A July 2012 letter from the Veteran's physician explains that the Veteran continued to recover following surgery and that he was excused from work until October 10, 2012. Additionally, the record includes writing from the Veteran in which he complained of pain following the surgery. However, the Board finds that even when considering the Veteran's complaints of pain/ observable adverse symptomatology, he does not meet the criteria for an extension of his temporary total evaluation past November 1, 2012, due to convalescence after his May 2012 lumbar fusion surgery because the medical evidence of record shows that he did not have severe postoperative residuals such as an incompletely healed surgical wound, a need for therapeutic immobilization of the joint, a need for house confinement, problems with a stump, the need for a body cast, or the need for the continued use of a wheelchair or crutches because regular weight bearing is prohibited. See 38 C.F.R. § 4.30(a); Owens, supra. In fact, the Board notes that at the August 2012 VA examination just three months before his temporary total evaluation ended November 1, 2012, was negative for evidence of an incompletely healed surgical wound, immobilization, house confinement, and continued use of a wheelchair or crutches. On the contrary, the examiner specifically reported that, while reduced, he nonetheless had pain-free back motion. Moreover, these medical findings are not contradicted by any other medical evidence of record. See Colvin, supra. In reaching the above conclusions, the Board has not overlooked the claims from the Veteran regarding his back's adverse symptomatology. See Davidson, supra. However, the Board finds the clinical finding in his treatment records and the August 2012 VA examiners opinion as to his adverse back symptomatology more probative than any lay claims from the appellant to the contrary even though his symptomatology is observable by a lay person because the examiners have medical training. See Black, supra. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the Board finds that the doctrine is not for application. See also, e.g., Ortiz, supra; Gilbert, supra. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded As to the claim for a rating in excess of 20 percent for left lower extremity radiculopathy, the post-Remand record shows that at the Veteran's May 2019 VA back examination, the Veteran described left thigh numbness that is severe as well as let thigh pain that is severe. Radiculopathy was considered in the May 2019 VA back examination and it was indicated that the Veteran had severe left lower extremity numbness. The May 2019 examiner went on to determine that the left lower extremity was not affected in determining the Veteran's level of left lower extremity severity. However, this latter determination is not consistent with the reports of the Veteran nor is it consistent with severe numbness of the left lower extremity documented earlier in the examination. In November 2020, the Veteran was afforded a VA peripheral nerves examination. The Veteran reported that he has progressively worsening pain down both legs, right worse than left, with pain radiating from his lower back down to his ankles. He stated that he has to crawl to the restroom due to the pain. He reported that his pain was at a 5 level during the examination, but that at its worst his pain is at a 9 level. The examiner noted that the Veteran had moderate left lower extremity pain, no intermittent pain, paresthesias and/or dysesthesias, and no numbness of the left lower extremity. However, this finding is contrary to the finding at the May 2019 VA back examination, which showed severe left lower extremity numbness. It is also contradictory to the Veteran's reports of constant pain, with periods of increased pain levels. Moreover, the examination did not address whether the Veteran has flare-ups despite the Veteran's reports of severe flare-ups. The examiner determined that the Veteran's lower extremity nerves condition is productive of sciatic nerve incomplete paralysis that is moderate. Although it is unclear whether this determination was made with consideration of flare-ups. Additionally, the examiners provided no rationale or explanation for their classifications of the severity of the Veteran's left lower extremity radiculopathy. Given the above the Board finds that Therefore, neither the May 2019 examination nor the November 2020 are adequate because neither provides a clear and consistent opinion as to the severity of the Veteran's left lower extremity radiculopathy symptoms. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Therefore, the Board finds that a Remand to provide the Veteran with another VA examination is required. . See 38 U.S.C. § 5103A(b); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). While the appeal is in remand status, any outstanding VA and private treatment records should be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). Entitlement to a TDIU prior to September 13, 2018, is remanded. The claim for a TDIU prior to September 13, 2018, is remanded because it is inextricably intertwined with the above remanded rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). These issues are REMANDED for the following actions: 1. Obtain any outstanding relevant VA medical records and associate them with the claims file. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 3. In order to comply with the earlier Remand, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left lower extremity radiculopathy. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any radiculopathy flare-ups and identify any functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate of the additional functional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner is also directed to provide a retrospective medical opinion, to the extent possible, assessing the progression and severity of the Veteran's left lower extremity radiculopathy, for the period beginning November 1, 2012. The examiner should address the relevant medical evidence of record, to include VA treatment records, May 2017 DBQ, and VA examinations dated August 2012, May 2019, and November 2020. (Continued on the next page) The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. A complete rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.