Citation Nr: 21040493 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-01 929 DATE: July 3, 2021 REMANDED Entitlement to an initial evaluation in excess of 50 percent for sleep apnea is remanded. Entitlement to an initial evaluation in excess of 30 percent for headaches is remanded. Entitlement to an initial evaluation in excess of 10 percent for coronary artery disease (CAD) is remanded. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease (DDD) of the lumbar spine is remanded. Entitlement to an effective date earlier than May 19, 2008, for the grant of service connection for radiculopathy of the left lower extremity is remanded. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1967 to October 1972. The Veteran died in October 2018. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions issued by a Regional Office (RO) of the Department of Veterans' Affairs (VA) in May 2013 and June 2016. While the Veteran was represented by a private attorney in the original claim, that representation terminated at the Veteran's death. Though the Veteran's widow now stands in his place as the appellant, she has not obtained separate representation. As the Appellant is therefore unrepresented in this case, VA has a duty to construe her claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). In July 2018, the Board remanded these issues for additional development. Specifically, the Board indicated that there appeared to be outstanding private treatment records related to the claims for increased ratings for sleep apnea, headaches, coronary artery disease, and DDD of the lumbar spine, which notably may also impact the intertwined issues of increased ratings and an earlier effective date for lower extremity radiculopathy and entitlement to a TDIU. The Board instructed that these records should be obtained as well as any outstanding VA treatment records. Additionally, the Board found that a VA opinion addressing the date of onset of the Veteran's left lower extremity radiculopathy was needed, and in light of the Veteran's contention that he also experienced radicular pain in his right lower extremity as early as April 2005, upon remand, the examiner was also asked to opine on the presence of objective neurologic abnormalities in the right lower extremity. The requested medical opinion addressing the Veteran's bilateral lower extremity radiculopathy was added to the claims file in July 2020 followed by an addendum opinion in September 2020. As a result of this development, in a September 2020 rating decision, the RO awarded an earlier effective date of May 19, 2008 for the grant of service connection for left lower extremity radiculopathy, indicating that the award of an earlier effective date is a partial grant of the benefits sought on appeal. Thus, this issue remains in appellate status. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, the September 2020 rating decision granted service connection for right lower extremity radiculopathy, assigning a 10 percent rating effective May 3, 2002. Although the issue of entitlement to an increased rating for right lower extremity radiculopathy was not included in the September 2020 Supplemental Statement of the Case (SSOC), the Board finds that this issue is part of the claim for an increased rating for DDD of the lumbar spine. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Unfortunately, the Board finds that further development is necessary to ensure compliance with the Board's July 2018 remand directives as it relates to the request to obtain outstanding treatment records. In this regard, the record does not reflect that the RO made any attempt to obtain authorization to obtain the private treatment records. Nevertheless, the Appellant, seemingly on her own accord, submitted a VA Form 21-4142 Authorization for the Release of Information in July 2019, identifying various VA providers and one non-VA treatment provider. However, this VA Form 21-4142 does not appear to include the referenced private treatment records. In this regard, the Board's July 2018 remand made specific reference to an April 2016 VA treatment record, indicating that the Veteran received ongoing care with Dr. Miller, a private physician. However, the VA Form 21-4142 does not appear to include any treatment from this physician and none of the records received in accordance with the Appellant's authorization include treatment by Dr. Miller. Accordingly, the Board finds that another remand is necessary to attempt to obtain the identified private treatment records and associate them with the claims file. See 38 U.S.C. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1); Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: 1. Contact the Appellant and ask her to provide written authorization on VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, and on VA Form 21-4142a, General Release for Medical Provider Information, for VA to obtain outstanding private treatment records from Dr. Miller. The AOJ must document all requests for information as well as all responses in the claims file and notify the Appellant in accordance with 38 C.F.R. § 3.159(e). 2. After all outstanding pertinent treatment records have been obtained, if deemed warranted, obtain a new addendum opinion from an appropriate clinician regarding the earliest objective neurological manifestations of the Veteran's service-connected lumbar spine disability, to include in the left and right lower extremities. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.