Citation Nr: 22014345 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-25 408 DATE: March 12, 2022 REMANDED Entitlement to a rating higher than 20 percent for degenerative arthritis of the spine (low back disability) prior to February 6, 2020, and a rating higher than 40 percent thereafter is remanded. Entitlement to a rating higher than 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1977 to April 1981, October 1985 to August 1990, December 1990 to April 1991, and October 1996 to August 1999. This matter come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in October 2019 to obtain outstanding treatment records and a new VA examination considering the Veteran's reports of radiating pain and providing a necessary discussion of functional loss due to flare-ups and repeated use over time as required by Sharp v. Shulkin, 29 Vet. App. 26 (2017). The RO obtained a new VA examination in accordance with the Board's remand directives in February 2020; however, the RO did not obtain pertinent outstanding treatment records as directed, despite the Veteran's VA treatment records documenting his participation in VA's Veterans Choice Program and reported treatment by a private neurosurgeon. The Board finds that a remand is necessary to obtain these outstanding treatment records. More specifically, the Veteran's VA treatment records include authorizations for enrollment into VA's Veterans Choice Program, allowing him to see a private neurosurgeon for care. See, e.g. November 2018 Veterans Choice Agreement Authorization. In November 2019, his VA physiatrist indicated that he had been seen by a neurosurgeon three weeks prior and that the Veteran required an EMG, but the records from the visit were not available. In December 2019, a private neurosurgeon at Neurosurgical Associates notified VA of the Veteran's lower back pain radiating to the posterior aspect of his thighs and indicated that they would obtain an EMG. See December 2019 Community Care Coordination Note. In February 2020, VA notified the Veteran that they would schedule the EMG consult, but there were unsure whether it would be completed at St. Cloud VAMC, Minneapolis VAMC, or in the community. See February 2020 Neurology Addendum. Also in February 2020, his VA physiatrist indicated that his neurosurgery records were obtained from his private neurosurgeon; however, these records are not in the claims file. See February 2020 Spinal Cord Injury Note. In April 2020, VA notified the Veteran that an EMG order would be sent to Noran Neurology. See April 2020 Community Care Addendum. In May 2020, the Veteran reported that he was seen in Minneapolis for his EMG, but did not indicate which provider conducted the EMG, and in August 2020, the reported that he completed his EMG but had not yet received the results. See May 2020 Spinal Cord Injury Note; August 2020 Spinal Cord Injury Note. The Veteran's VA treatment records do not reference this EMG or his private neurosurgery treatment from August 2020 onward. As the above treatment records are relevant to the Veteran's service-connected low back disability and bilateral lower extremity radiculopathy claims on appeal, the Board finds that a remand is necessary to obtain outstanding treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from February 2022 to present, including any copy that VA has of the EMG report referenced in the August 2020 Spinal Cord Injury Note and any other outside treatment records in VA's possession. 2. Request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his service-connected low back disability and radiculopathy, including those at Neurosurgical Associates and Noran Neurology, as well as any other providers that he has seen through the Veterans Choice Program. See December 2019 Community Care Coordination Note; April 2020 Community Care Addendum. After acquiring this information and obtaining any necessary authorization, obtain and associate these records with the claims file. Document any negative responses. If any private treatment records are unavailable, notify the Veteran and his representative and give them the opportunity to submit the records. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.