Citation Nr: 21032018 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-11 599 DATE: May 25, 2021 REMANDED Entitlement to a higher initial rating for left lower extremity radiculopathy of the sciatic nerve, rated noncompensable prior to October 21, 2015, 10 percent disabling from October 21, 2015 through November 18, 2019, and 20 percent disabling from November 19, 2019, is remanded. Entitlement to a higher initial rating for right lower extremity radiculopathy of the sciatic nerve, rated noncompensable prior to October 21, 2015, 10 percent disabling from October 21, 2015 through November 18, 2019, and 20 percent disabling from November 19, 2019, is remanded. Entitlement to a higher initial rating for left lower extremity radiculopathy of the femoral nerve, rated noncompensable prior to November 19, 2019 and 20 percent disabling from that date, is remanded. Entitlement to a higher initial rating for right lower extremity radiculopathy of the femoral nerve, rated noncompensable prior to November 19, 2019 and 20 percent disabling from that date, is remanded. Entitlement to an increased rating for intervertebral disc syndrome (IVDS) and sacroiliitis of the thoracolumbar spine, rated 10 percent disabling prior to March 27, 2019, 20 percent disabling from March 27, 2019 through November 18, 2019, and 40 percent disabling from November 19, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2002 to August 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision, in which the agency of original jurisdiction (AOJ) denied entitlement to an increased (compensable) rating for right sacroiliitis. In September 2015, the AOJ granted an increased (10 percent) rating for right sacroiliitis, from May 13, 2015. In an October 2017 rating decision, the AOJ re-characterized the Veteran's back disability as IVDS and granted an increased (10 percent) rating, effective February 26, 2008. In this regard, the Board observes that the date of February 26, 2008 is outside the appeal period at issue here as this claim stems from a May 7, 2012 claim for increase. The October 2017 rating decision also changed the Diagnostic Code under which the Veteran's disability was rated from Diagnostic Code 5236 for sacroiliac injury and weakness to Diagnostic Code 5243 for IVDS. See Read v. Shinseki, 651 F. 3d 1296 (Fed. Cir. 2011) (service connection for a disability is not severed when the Diagnostic Code associated with it is changed to more accurately determine the benefit to which a veteran may be entitled). In December 2018, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The VLJ who conducted the hearing is no longer employed at the Board and is unable to participate in any further adjudication. This matter was previously remanded by the Board in May 2019 for further development. In July 2020, a Decision Review Officer (DRO) granted an increased (20 percent) rating, from March 27, 2019 through November 18, 2019, and an increased (40 percent) rating, from November 19, 2019, for the service-connected back disability. In a letter dated February 2, 2021, the Veteran was notified that the VLJ who conducted the December 2018 Board hearing was no longer available. In response, the Veteran returned the hearing request form and checked the box withdrawing her request for a hearing. Therefore, the Board may proceed to consider her appeal. As for characterization of the issues on appeal, in the October 2017 rating decision, the AOJ awarded service connection for left and right lower extremity radiculopathy of the sciatic nerves and assigned initial 10 percent disability ratings, both from October 21, 2015. In the July 2020 decision, the DRO granted service connection for left and right lower extremity radiculopathy of the femoral nerves and assigned initial 20 percent disability ratings, both from November 19, 2019. The DRO also granted increased (20 percent) disability ratings for left and right lower extremity radiculopathy of the sciatic nerves, both from November 19, 2019. Therefore, the Board has included the separate issues of entitlement to higher initial ratings for left and right lower extremity radiculopathy of the sciatic and femoral nerves because these issues are being considered as part of the claim for an increased rating for the service-connected back disability. See 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (providing that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code). Since the claim period for the back issue dates back to May 7, 2012, the Board has characterized the radiculopathy issues as listed above. Entitlement to higher initial ratings for left and right lower extremity radiculopathy of the sciatic and femoral nerves and entitlement to an increased rating for IVDS and sacroiliitis of the thoracolumbar spine are remanded. The evidence indicates that there may be outstanding relevant VA treatment records. Specifically, VA treatment records dated in September 2020 show that there were pending results of an MRI of the lumbar spine and that imaging was scanned into the medical record. However, upon review, the results are not available for the Board's review. The most recent VA treatment records in the claims file are from the Hampton Vista electronic records system and are dated to October 2020. 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. Also, a March 2020 letter from the United States Office of Personnel Management indicates that the Veteran was approved for federal disability retirement benefits. Any outstanding records pertaining to the Veteran's claim for federal disability retirement benefits may be relevant to the issues on appeal. Hence, the AOJ should attempt to obtain any such relevant records upon remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated her for her claimed disability. After securing any necessary releases, the AOJ should request any relevant records identified that have not already been obtained. 2. Obtain the Veteran's outstanding VA treatment records, to include (a) the report of the MRI of the lumbar spine that was scanned into CPRS on September 28, 2020; (b) all records from the Hampton Vista electronic records system for the period since October 2020; and (c) all such relevant records from any other sufficiently identified VA facility. (CONTINUED ON NEXT PAGE) 3. Contact the United States Office of Personnel Management and request all records relied upon in making any disability retirement determination(s). Document all requests for information as well as all responses in the claims file. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina, 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.