Citation Nr: 21031009 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 07-18 441 DATE: May 20, 2021 REMANDED Entitlement to special monthly compensation (SMC) based on loss of use of the lower extremities is remanded. Entitlement to an initial rating in excess of 20 percent for cervical strain is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to April 13, 2015, and in excess of 40 percent thereafter, for service-connected lumbosacral strain with degenerative disc disease (lumbar spine disability) is remanded. Entitlement to an initial rating more than 40 percent for radiculopathy, upper radicular group, right upper extremity is remanded. Entitlement to an initial rating more than 30 percent for radiculopathy, upper radicular group, left upper extremity is remanded. Entitlement to an initial rating more than 20 percent for radiculopathy, sciatic nerve, left lower extremity is remanded. Entitlement to an initial compensable rating for hallux valgus, right foot is remanded. Entitlement to an initial compensable rating for hallux valgus, left foot is remanded. Entitlement to an effective date earlier than April 13, 2015 for service-connected radiculopathy, upper radicular group, right upper extremity is remanded. Entitlement to an effective date earlier than April 13, 2015 for service-connected radiculopathy, upper radicular group, left upper extremity is remanded. Entitlement to an effective date earlier than April 13, 2015 for service-connected radiculopathy, sciatic nerve, left lower extremity is remanded. Entitlement to an effective date earlier than April 13, 2015 for service-connected hallux valgus, right foot is remanded. Entitlement to an effective date earlier than April 13, 2015 for service-connected hallux valgus, left foot is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1967 to June 1967 and from June 1972 to February 1975. As noted in the September 2020 remand, this case has a long and complicated history. The procedural history discussed in the August 2018 remand is incorporated by reference. The Board most recently remanded the case in September 2020 for readjudication and issuance of a supplemental statement of the case (SSOC). Regrettably, as will be explained below, another remand is once again necessary before the Veteran's claims on appeal can be adjudicated. 1. Entitlement to SMC based on loss of use of the lower extremities Initially, with regard to the Veteran's claim of entitlement to SMC based on loss of use of the lower extremities, following the November 2020 supplemental statement of the case, but prior to when the appeal was certified to the Board in January 2021, additional pertinent evidence was added to the claims file, including a November 2020 VA peripheral nerves examination and a November 2020 VA foot conditions examination. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will be first reviewed at the agency of original jurisdiction (AOJ) so as to not deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence prior to certification and transfer of the case to the Board that is relevant to a claim or claims properly before it that is not duplicative of evidence already discussed in the Statement of the Case or Supplemental Statement of the Case, it must prepare a Supplemental Statement of the Case reviewing that evidence. 38 C.F.R. § 19.31 (2020). The November 2020 VA peripheral nerves examination and November 2020 VA foot conditions examination are relevant to the Veteran's claim of entitlement to SMC based on loss of use of the lower extremities, and they were added to the record before the case was transferred to the Board. Accordingly, this matter must be remanded for consideration of such evidence in by the AOJ in the first instance. 2. Entitlement to increased ratings for service-connected cervical strain, lumbar spine disability, bilateral upper extremity radiculopathy, and left lower radiculopathy There appear to be outstanding VA records which may contain information and evidence relevant to the Veteran's claims. Specifically, November 2020 VA medical opinions addressing the severity of the Veteran's cervical spine disability and lumbar spine disability during flare-ups referred to "neck" and "back" disability benefits questionnaires (DBQ) dated September 18, 2020. After careful review of the claims file, there are no September 2020 DBQs associated with the claims file. To ensure that there is an adequate record upon which to decide the Veteran's claims, a remand is necessary to obtain the September 2020 DBQs referenced in the November 2020 VA medical opinions. The AOJ should also obtain any updated VA treatment records, and the Veteran should be given the opportunity to identify any additional records that are relevant to his claims, and to provide the necessary information in order for the VA to assist him in obtaining these potentially relevant records. 3. Entitlement to increased ratings for service-connected bilateral hallux valgus In connection with the Board April 2020 remand, the Veteran underwent a VA examination in November 2020 to assess the current nature and severity of his service-connected bilateral hallux valgus. The Veteran reported flare ups that he described as severe pain that would sometime last for two to three weeks and would prevent him from standing. The Veteran reported that flare ups occurred all of the time, and that it comes and goes periodically. The examiner then noted that pain, weakness, fatigability, and/or incoordination would significantly limit the Veteran's functional ability, including his ability to stand and walk, during flare-ups or following repetitive use. Unfortunately, the examiner made no further attempt to identify the level of functional loss during flare-ups or due to repetitive use. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Because the November 2020 VA examination report does not adequately address the Veteran's level of functional loss during flare-ups or due to repetitive use, the Board finds that an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 4. Entitlement to earlier effective dates for service-connected bilateral upper extremity radiculopathy, left lower radiculopathy, and bilateral hallux valgus As determined by the Board in its prior April 2020 remand, because a decision on the remanded issues addressed above could impact a decision on the issues of entitlement to earlier effective dates, the issues are inextricably intertwined. A remand of the claim for entitlement to earlier effective dates for radiculopathy of the bilateral upper extremities, left lower extremity, and bilateral hallux valgus is thereby required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records with the claims file 2. Obtain copies of the September 2020 back and beck DBQs referenced in the November 2020 VA medical opinions. 3. 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. 4. After all outstanding records have been associated with the claims file, return the claims file to the medical professional who performed the November 2020 VA foot conditions examination to provide answers to the questions posed below. The record and a copy of this Remand must be made available to the examiner(s). The need for an additional examination is left to the discretion of the clinician selected to write the addendum opinion(s). Following a review of the entire record, to include the Veteran's lay statements concerning the nature and severity of his bilateral hallux valgus, the examiner(s) should address the following questions: a) The examiner should describe all symptoms associated with the Veteran's service-connected bilateral hallux valgus since April 13, 2015. b) Then, based upon the evidence of record, and the information elicited during the November 2020 examination, to include the Veteran's lay statements, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that, during a flare-up or following repetitive use, the Veteran's bilateral hallux valgus was manifested as severe (if equivalent to amputation of great toe) at any point since April 13, 2015. In offering any opinion, the examiner must consider the full record, to include the Veteran's statement concerning the level of functional loss he experienced during flare-ups or following repetitive use. A clearly-stated rationale for any opinion offered should be provided, and must be based on consideration of all pertinent lay and medical evidence 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. V. Chiappetta 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.