Citation Nr: 21041323 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-28 882A DATE: July 8, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for residuals of a low back injury is remanded. Entitlement to a disability rating in excess of 10 percent for residuals of a T-11 fracture is remanded. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity, L5-S1, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to January 23, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1981 to October 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A December 2019 Board decision remanded the claims to request VA and private treatment records and Social Security Administration (SSA) records. The Board finds that the RO has substantially complied with the Board's prior remand order. Dyment v. West, 13 Vet. App. 141 (1999). 1. Entitlement to a disability rating in excess of 20 percent for residuals of a low back injury. 2. Entitlement to a disability rating in excess of 10 percent for residuals of a T-11 fracture. 3. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity, L5-S1. Issues 1 3: The Veteran's representative contends that muscle spasms should be considered in the claims for increased ratings. See Appellate Brief (June 2021). The Board finds that remand is required to inform the Veteran of material changes in, and additions to, the information included in the supplemental statement of the case. 38 C.F.R. § 19.31. Here, following the August 2020 supplemental statement of the case, private treatment records indicating treatment for back and nerve disabilities were submitted in August 2020 and December 2020. The private treatment records are materially different than the medical evidence of record during the appeal period, to include October 2011 and December 2014 VA examinations, as they indicate treatment for muscle spasms of the back and cervicalgia. Although a neck disability is not currently service connected, the fact that neck pain (cervicalgia) was diagnosed without a specific etiology suggests that the neck pain may be related to the Veteran's service-connected back and nerve disabilities. Notably, the October 2011 and December 2014 VA examinations showed no back spasms or radiating pain above the thoracolumbar spine. Additionally, remand is required as those private records indicate recent treatment for service-connected disabilities, but the actual treatment notes from encounters in February 2020 and June 2020 were not included. See 38 C.F.R. § 3.159(c) (VA has a duty to assist claimants in obtaining evidence to substantiate a claim). Further, the Board finds that remand is necessary because those private treatment records indicate that the Veteran's disabilities have worsened since the October 2011 and December 2014 VA examinations as they show that the Veteran's disabilities are now manifested by back spasms and radiating pain above the back. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 4. Entitlement to a TDIU, prior to January 23, 2015. The Veteran's representative contends that the June 2014 statement of the case and the August 2020 supplemental statement of the case made no reference to the Veteran's treatment with Dr. S. P. See Correspondence (August 2020). Although a statement from Dr. S. P. regarding the Veteran's unemployability was submitted in October 2020, see Medical Treatment Record - Non-Government Facility (October 2020), that statement provided no indication of when the Veteran became unemployable and included no records of any treatment provided. Although the Veteran was sent a release of information for medical providers in May 2020, and did not complete and return the form, VA should make one more attempt to obtain the Veteran's private treatment records. 38 U.S.C. § 5103A(b)(2)(B). The Veteran is reminded that that VA's duty to assist in the development of claims is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). He should cooperate and assist as requested in the development of this matter. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. S. Pirris, Dr. M. Lincoln, and Dr. C. Swanson. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. *The clinician should consider the evidence of muscle spasms and opine whether they are a manifestation of the Veteran's service-connected back disabilities or a separate disorder. *The clinician should also consider the evidence of cervicalgia and opine whether it is a manifestation of the Veteran's service-connected back disabilities or a separate disorder. The opinion should clearly identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the spine and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) per DeLuca. *Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing for the spine. If the spine cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. *The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. *Regarding flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected nerve disability. 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. Nerve conduction studies should be performed, if necessary, to determine the extent of nerve involvement. *The clinician should consider the evidence of cervicalgia and opine whether it is a manifestation of nerve disability. If so, the clinician should opine if it is a manifestation of the Veteran's service-connected back and/or nerve disabilities, or a separate disorder not related to a service-connected disability. The opinion should clearly identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.