Citation Nr: 22010260 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 16-01 541 DATE: February 23, 2022 REMANDED Entitlement to an evaluation in excess of 40 percent for lumbar spine herniated disc with stenosis, degenerative arthritis, and intervertebral disc syndrome (IVDS) is remanded. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity (sciatic nerve) prior to November 12, 2015, is remanded. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity (sciatic nerve) on or after November 12, 2015, is remanded. Entitlement to an initial compensable evaluation for radiculopathy of the left lower extremity (femoral nerve) prior to December 6, 2020, is remanded. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity (femoral nerve) on or after December 6, 2020, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the Arizona Army National Guard, and he was ordered to initial active duty for training/advanced individual training from February 2001 to May 2001 and from July 2001 to September 2001. He was also ordered to active duty in support of Operation Iraqi Freedom from December 2003 to May 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO continued a 40 percent evaluation for lumbar spine herniated disc with stenosis. The RO also granted service connection for radiculopathy (claimed as lower back neuropathy and sciatica) and assigned a 10 percent evaluation effective from August 12, 2013. In December 2015, the RO increased the evaluation for radiculopathy of the left lower extremity (sciatic nerve) to 20 percent effective from November 12, 2015. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2019. A transcript is of record. The Board remanded the case for further development in October 2019. The case has since been returned to the Board for appellate review. During the pendency of the appeal, in a January 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for radiculopathy of the left lower extremity involving the femoral nerve and assigned a noncompensable evaluation from January 16, 2020, and a 20 percent evaluation from December 6, 2020 (femoral nerve). Because the left lower extremity evaluations do not represent the highest possible benefit available, the claim for an increased evaluation remains in appellate status. See A.B. v. Brown, 6 Vet. App. 35 (1993). The Board also notes that the Veteran indicated in a December 2019 statement that he had a stroke due to lumbar spine epidural injections. However, the AOJ previously denied reopening a claim for service connection for a stroke in an April 2017 rating decision. If he wants to pursue a claim for that benefit, the Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. Upon review, the Board finds that additional development is needed prior to adjudication of the issues on appeal. In October 2019, the Board remanded the case, in pertinent part, to afford the Veteran VA examinations in connection with the increased evaluation claims. The Veteran was subsequently afforded VA examinations in March 2020 and December 2020. A March 2020 VA examiner indicated that the Veteran reported having bowel and bladder incontinence. The Board notes that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). In a January 2021 VA medical opinion, a VA examiner opined that the Veteran's bowel and bladder dysfunction are less likely than not proximately due to or the result of his service-connected lumbar spine disability and are not aggravated beyond its natural progression. She explained that the etiology is multifactorial, as the Veteran has incomplete central cord syndrome with incomplete quadriplegia, status post cervical fusion being the largest and most significant contributor to his claimed bladder bowel dysfunction. However, based on the wording of her rationale, it remains unclear as to whether the Veteran's service-connected lumbar spine disability contributed in some part to any bladder or bowel impairment. Moreover, the examiner did not address whether the Veteran has any bowel or bladder impairment that may be secondary to his service-connected left lower extremity radiculopathy. Therefore, the Board finds that an additional VA medical opinion are needed. In addition, a retrospective opinion is needed regarding prior VA examinations and whether an estimation of the range of motion of the thoracolumbar spine can be provided for active motion, passive motion, weight-bearing, and nonweight-bearing. Moreover, the Board finds that the increased evaluation issues are inextricably intertwined with the issue of entitlement to TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his lumbar spine and left lower extremity radiculopathy that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate relevant records with the claims file. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, the AOJ should obtain a medical opinion to ascertain the severity and manifestations of the Veteran's service-connected lumbar spine herniated disc with stenosis, degenerative arthritis, and IVDS. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an estimation of the range of motion of the thoracolumbar spine in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing for prior examinations conducted during the appeal period. See e.g. March 2014, November 2015, January 2018, and March 2020 VA examinations. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. The examiner should also provide an opinion on whether the Veteran's service-connected lumbar disability has caused the functional equivalent of favorable or unfavorable ankylosis. In addition, the examiner should identify any neurological abnormalities, including, but not limited to, bowel or bladder impairment, that are associated with the Veteran's service-connected lumbar spine disability or radiculopathy of the left lower extremity. He or she should opine as to whether it is at least as likely as not that the Veteran has bowel or bladder impairment that is either caused by or aggravated by his service-connected lumbar spine disability and/or left lower extremity radiculopathy. It should be noted that a March 2020 VA examiner indicated that the Veteran had bowel and bladder impairment, but found that the etiology was unclear. A January 2021 VA examiner opined that the Veteran's bowel and bladder dysfunction are less likely than not proximately due to or the result of his service-connected lumbar spine disability and are not aggravated beyond its natural progression. She explained that the etiology is multifactorial, as the Veteran has incomplete central cord syndrome with incomplete quadriplegia, status post cervical fusion being the largest and most significant contributor to his claimed bladder bowel dysfunction. However, based on the wording of her rationale, it remains unclear as to whether the Veteran's service-connected lumbar spine disability contributed in some part to any bladder or bowel impairment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the AOJ should schedule the Veteran for a VA examination to determine the combined effects of his service-connected disabilities and any resulting impairment. The examiner should address how the Veteran's service-connected disabilities alone result in functional impairment, to include the effects of any medications used to treat those disorders, and comment on the Veteran's ability to function in an occupational environment. If possible, he or she should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. These findings should not consider any nonservice-connected disabilities. A written copy of the report should be associated with the electronic claims folder 4. After completing the above actions, the AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.