Citation Nr: 22014964
Decision Date: 03/15/22	Archive Date: 03/15/22

DOCKET NO. 15-27 751
DATE: March 15, 2022

REMANDED

Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability prior to June 10, 2019, and in excess of 20 percent after June 10, 2019, is remanded.

Entitlement to a compensable rating for right lower extremity radiculopathy prior to June 10, 2019, is remanded.

REASONS FOR REMAND

The Veteran who served on active duty from January 1987 to June 1992, from July 2007 to July 2008, and from September 2009 to June 2012.  

This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in October 2021, which granted a joint motion for partial remand (JMPR) vacating part an October 2020 Board decision and remanding the issues on appeal for additional development.  The matters initially arose from a November 2012 rating decision.

The October 2021 JMPR found the prior Board decision failed to adequately explain how it determined the effective date for an increased rating and seemingly improperly relied on evidence of the ameliorative effects of prescribed medication in denying a higher rating.  It was also noted that the decision overlooked in-service records reporting radicular complaints associated with a low back disability and a June 2011 VA examiner's indication of burning to nerve endings as far back as 2009.  The Board finds another VA medical examination is required for adequate determinations.  

In January 2022, the Veteran also provided a copy of a recent private treatment report noting he needed additional surgery for his low back pain.  It was noted, in essence, that he had accepted surgical treatment but no additional information as to the matter was provided.  Prior to any examination, up-to-date treatment records should be obtained.  

The matters are REMANDED for the following action:

1. Ask the Veteran to identify any additional private treatment records pertinent to his claims and to complete a VA Form 21-4142 if he desires VA assistance in obtaining evidence.  If sufficient information is provided VA must make two requests for the authorized records, unless it is clear after the first request that a second request would be futile.

2. Obtain all pertinent VA medical records not yet associated with the appellate record.

3. Schedule the Veteran for an appropriate examination for opinions as to the current nature and extent of his service-connected lumbar spine and right lower extremity disabilities.  The examiner must record the range of motion for pain on active motion and passive motion and in weight bearing and non-weight bearing information, must address the necessary findings to evaluate functional loss during flare-ups, or must clearly explain why the required testing cannot be completed or is not necessary.  

The examiner must provide retrospective opinions as to the severity of the disabilities since June 2012 and must address whether any medications the Veteran used affected the severity of the disabilities.  If so, identify each medication and clearly explain the effect of such medication.  If any such medication was productive of ameliorative effects, clearly identify such effects and opine as to the severity of the disabilities absent such medication.  Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to range of motion, if possible.  If such opinions cannot be provided, the examiner must clearly explain why or address why the requested opinions are not necessary.

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Douglas

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.