Citation Nr: 22014373 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-67 608 DATE: March 12, 2022 REMANDED Whether the rating reduction from 20 percent to 10 percent, effective December 12, 2017, for degenerative disc disease (DDD) of the lumbar spine was proper is remanded. Entitlement to an evaluation in excess of 20 percent prior to December 12, 2017, and an evaluation in excess of 10 percent from December 12, 2017, for DDD of the lumbar spine is remanded. Entitlement to an initial evaluation in excess of 10 percent for right lower extremity (RLE) radiculopathy is remanded. Whether the rating reduction from 10 percent to zero percent, effective June 1, 2016 to December 11, 2017, for left lower extremity (LLE) radiculopathy was proper is remanded. Entitlement to a compensable evaluation prior to June 1, 2016, an evaluation in excess of 10 percent prior to December 12, 2017, and an evaluation in excess of 10 percent from December 12, 2017, for LLE radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1978 to July 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the August 2016 rating decision, the RO, in pertinent part, granted service connection for RLE radiculopathy and assigned a 10 percent evaluation, effective May 23, 2016; denied a higher than 20 percent evaluation for DDD of the lumbar spine; and decreased the evaluation from 10 percent to zero percent, effective June 1, 2016, for LLE radiculopathy. The Veteran appealed for higher evaluations for RLE radiculopathy, LLE radiculopathy and DDD of the lumbar spine and the propriety of the rating reduction for LLE radiculopathy. During the pendency of the appeal, the RO issued a December 2017 rating decision, which, in pertinent part, granted a 10 percent evaluation for LLE radiculopathy, effective December 12, 2017; and decreased the rating from 20 percent to 10 percent, effective December 12, 2017, for DDD of the lumbar spine. The Veteran continued to appeal for a higher evaluation for LLE radiculopathy and DDD of the lumbar spine. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). Additionally, the Board finds that the issue of the propriety of the rating reduction for DDD of the lumbar spine is part and parcel of the current appeal, because the rating reduction occurs during the appeal period for the Veteran's increased evaluation claim for DDD of the lumbar spine. In October 2021, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Whether the rating reduction from 20 percent to 10 percent, effective December 12, 2017, for DDD of the lumbar spine was proper is remanded. 2. Entitlement to an evaluation in excess of 20 percent prior to December 12, 2017, and an evaluation in excess of 10 percent from December 12, 2017, for DDD of the lumbar spine is remanded. 3. Entitlement to an initial evaluation in excess of 10 percent for RLE radiculopathy is remanded. 4. Whether the rating reduction from 10 percent to zero percent, effective June 1, 2016 to December 11, 2017, for LLE radiculopathy was proper is remanded. 5. Entitlement to a compensable evaluation prior to June 1, 2016, an evaluation in excess of 10 percent prior to December 12, 2017, and an evaluation in excess of 10 percent from December 12, 2017, for LLE radiculopathy is remanded. At the October 2021 Board hearing, the Veteran testified that at the time of rating reductions in 2016 and 2017, his DDD of the lumbar spine and LLE radiculopathy had not improved, but had worsened. In support of those assertions, the Veteran indicated that he had provided VA with Blanchfield Army Community Hospital treatment records from 2015 to 2017, which reflected his 12 visits per year to a chiropractor as permitted as recommended by VA. Additionally, the Veteran explained how his lumbar spine and bilateral lower extremity symptoms had worsened to the extent that flare-ups caused him to crawl on all fours at least three to four times a month, that he used an electric cart while grocery shopping and a cane for assistance, and that he had difficulty walking, bending, and standing for long periods of time. First, the Board recognizes that the record contains treatment records from Blanchfield Army Community Hospital dated from 2012 to 2019. There is no indication that there are additional relevant treatment records from this facility that are outstanding. However, because these relevant treatment records were not received until 2019, the RO did not have the benefit of considering them. Second, the Board notes that in a January 2020 VA treatment record, the Veteran indicated that he was not interested in physical therapy, because he was receiving chiropractic treatment. A review of the record does not reveal any chiropractic treatment records since 2017. Because there are potentially relevant treatment records outstanding, the Board finds that a remand is required to obtain those chiropractic treatment records. Third, in December 2017, the Veteran underwent a VA spine examination. However, the Board finds that the December 2017 VA examination is inadequate for rating purposes. The December 2017 VA examiner provided opinions which did not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that an opinion for whether the Veteran had additional functional loss during flare-ups or after repeated use over time for a musculoskeletal disability could not be provided without speculating was inadequate). Accordingly, a remand is required to obtain a new VA examination for the Veteran's DDD of the lumbar spine. Fourth, given the Veteran's October 2021 Board hearing testimony attesting to his worsening symptoms of his DDD of the lumbar spine and bilateral lower extremity radiculopathy since his last VA examination December 2017, the Board finds that a new VA examination is warranted. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a). Accordingly, a remand is required to determine the current severity of his service-connected DDD of the lumbar spine and bilateral lower extremity radiculopathy. Finally, the Board finds that it would be premature to adjudicate the Veteran's claims for whether the ratings reductions for DDD of the lumbar spine and LLE radiculopathy were proper, as these issues are inextricably intertwined with the increased evaluation claims for DDD of the lumbar spine, LLE radiculopathy, and RLE radiculopathy. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the claims for whether the ratings reductions for DDD of the lumbar spine and LLE radiculopathy were proper must also be remanded. The matters are REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran's DDD of the lumbar spine and bilateral lower extremity radiculopathy that are not currently of record, to include the outstanding chiropractic treatment records identified in the January 2020 VA treatment record. 2. Schedule the Veteran for a VA examination by an appropriately qualified clinician (M.D.) to determine the current severity of his service-connected DDD of the lumbar spine and bilateral lower extremity radiculopathy. 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 examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his lumbar spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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 should comment on the extent of any functional impairment caused by the Veteran's service-connected DDD of the lumbar spine and bilateral lower extremity radiculopathy, to include in an occupational setting and in performing ordinary, daily activities. All findings should be fully documented in the examination report. (Continued on the next page) 3. To avoid another remand, the Agency of Original Jurisdiction (AOJ) must review the requested development and ensure that the Board's specific instructions have been completed in full. If any development is found to be inadequate, it must be returned to the providing examiner for corrective action. If such corrective action is not requested, then the Board will be required to return the case to the AOJ for substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After ensuring the above development has been completed, readjudicate the issues on appeal, to include the inextricably intertwined issues of whether the rating reductions for DDD of the lumbar spine and LLE radiculopathy were proper. If the benefits sought on appeal are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. Then, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.