Citation Nr: 22013547 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 14-24 078 DATE: March 9, 2022 REMANDED Entitlement to a rating greater than 10 percent for degenerative arthritis of the spine with intervertebral disc syndrome (IVDS) (low back disability) for the period prior to January 27, 2021, is remanded. Entitlement to a rating greater than 40 percent for a low back disability from January 27, 2021, is remanded. Entitlement to a rating greater than 10 percent for right lower extremity radiculopathy for the period prior to January 27, 2021, is remanded. Entitlement to a rating greater than 20 percent for right lower extremity radiculopathy for the period from January 27, 2021, is remanded. Entitlement to a rating greater than 10 percent for left lower extremity radiculopathy for the period prior to January 27, 2021, is remanded. Entitlement to a rating greater than 20 percent for left lower extremity radiculopathy for the period from January 27, 2021, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from March 2008 to March 2012. He appealed a July 2012 rating decision by the Agency of Original Jurisdiction (AOJ). These matters were remanded for additional development in September 2016 and September 2020. Unfortunately, another remand is required. Preliminarily, the Board notes that in February 2022 the Veteran submitted a VA Form 10182 in response to the rating decision that accompanied the February 2021 Supplemental Statement of the Case (SSOC). The Board initially mailed the Veteran a letter informing him that his appeal had been docketed under the Appeals Modernization Act system. However, that letter was sent in error, and the Board has sent the Veteran and his representative additional correspondence to that effect. There are outstanding records. The June 2012 examiner noted she had reviewed the Computerized Patient Record System (CPRS) in addition to the Veteran's claims file. However, the Board does not have access to CPRS. Further, in February 2015 the Veteran reported seeing a chiropractor one to three times per week for the last three years; however, the most recent records from the Veteran's chiropractors were sick slips received from the Veteran in October 2014. Additionally, VA medical records indicate non-VA consults related to the Veteran's back disability were scanned into Vista Imaging in January 2016, February 2016, and August 2016. However, the Board does not have access to Vista Imaging and the records are otherwise not in the claims file. Lastly, the most recent VA treatment records suggest the Veteran received care for his back disability from VA and non-VA providers. See March 2021 VA primary care consult. As these outstanding records bear on the Veteran's claims, a remand is necessary to obtain them. The Veteran was most recently provided a spine examination in January 2021. At that time, the examiner noted a diagnosis of IVDS and indicated the Veteran did not have any incapacitating episodes. However, later in the report the examiner stated that incapacitating episodes were not clearly documented within evidence of record made available on day of exam. The Veteran's appeal is being remanded to obtain outstanding records that are relevant to this question. Thus, an opinion should be obtained to account for any new evidence that may be used to determine the severity of the Veteran's IVDS. As answering this question may require an evaluation of the Veteran, a new examination should be provided. The Veteran has raised the issue of unemployability due to his back condition during the appeal period. See, e.g., July 2020 email correspondence and January 2021 examination report at 16. The Board instructed the AOJ to request the employment information from the Veteran, and the AOJ sent the Veteran a TDIU development letter in September 2020. To date, the Veteran has not responded. VA medical records from March 2020 and March 2021 indicate the Veteran was working full time and had deployed abroad for work. Given these facts, it is unclear whether the Veteran currently has gainful employment or at what point during the appellate period he stopped working. On remand the AOJ should request from the Veteran a complete post-service employment history, to include details regarding any accommodations made for his service-connected disabilities. The matters are REMANDED for the following actions: 1. Obtain and associate with the record outstanding VA treatment records, to include records from March 2021 forward, as well as any outstanding relevant records viewable in CPRS and Vista Imaging, to include the January 2016, February 2016, and August 2016 non-VA consults. Any outstanding private treatment records, to include records from the Veteran's chiropractic care providers, should also be requested. 2. Obtain a complete post-service employment and education history of the Veteran. The employment history should indicate the type of position, whether any position held was full time or part time (including hours per week worked if part time) and the wages earned. Any employment accommodations should be described in detail. 3. After any outstanding records have been received, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back and radiculopathy disabilities. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing, and elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without 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). The examiner is also asked to address whether the Veteran's IVDS has resulted in incapacitating episodes that have required treatment or bed rest prescribed by a physician at any point during the appeal period. (Continued on the next page) 4. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.