Citation Nr: 22016560 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-06 978 DATE: March 22, 2022 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, for the period after November 24, 2016, is remanded. REASONS AND BASES FOR REMAND The Veteran served on active duty from July 1999 to February 2004. On appeal is an August 2013 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO) that, as relevant here, granted an increased rating of 10 percent for degenerative disc disease of the lumbar spine. The Veteran timely appealed. When this claim was initially before the Board of Veterans' Appeals (Board) in August 2020, the Board granted the increased rating claim, assigning a 20 percent rating for degenerative disc disease (DDD) of the lumbar spine for the entire period on appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Veteran's representative and the VA General Counsel filed a joint motion for partial remand (JMPR) moving the Court to issue an order vacating only that part of the Board's August 2020 decision that denied a disability rating higher than 20 percent for DDD of the lumbar spine on and after November 24, 2016. The parties agreed that the Board erred when, in the context of considering the increased rating claim for the Veteran's lumbar spine, it found that a separate rating for left lower extremity radiculopathy was not warranted. The parties noted there were private treatment records that showed treatment for bilateral radiculopathy. The Court granted the JMPR in February 2021, vacating that portion of the Board's August 2020 decision that denied entitlement to a disability rating higher than 20 percent for DDD of the lumbar spine on and after November 24, 2016. The matter of an increased rating for DDD of the lumbar spine, to specifically include whether a separate rating for radiculopathy of the left lower extremity is appropriate, remains before the Board for adjudication. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine for the period after November 24, 2016, is remanded. As noted above, the parties agreed in the February 2021 JMPR that the Board erred when, in the context of considering the increased rating claim for the Veteran's DDD of the lumbar spine, the Board found that a separate rating for left lower extremity radiculopathy was not warranted in this case. The parties noted there were private treatment records that showed treatment for bilateral radiculopathy. On remand, a VA examination must be obtained to determine the current severity of the Veteran's DDD of the lumbar spine, to specifically include addressing whether the Veteran has any neurologic abnormalities associated with her lumbar spine disability, including radiculopathy of her lower extremities, that would warrant separate ratings. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current severity of her degenerative disc disease of the lumbosacral spine, to specifically include any neurologic abnormalities associated with her lumbar spine disability, including radiculopathy of the lower extremities. All necessary studies and tests should be conducted. The examiner must review the results of any studies, to include x-rays, prior to completing the examination report. The examination report must include a discussion of the Veteran's documented medical history and lay statements. The examiner must report the range of motion measurements for the lumbosacral spine in active motion, passive motion, weight-bearing, and non-weight-bearing (if applicable). If the examiner is unable to conduct the required testing, or concludes the requested testing is not necessary, he or she must clearly explain why that is so. See Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must further comment as to whether there is any pain, weakened movement, excess fatigability or incoordination on movement, and whether there is likely to be additional range of motion loss due to any of the following: pain on use, including during flare-ups; weakened movement; excess fatigability; or incoordination. The examiner is asked to describe whether pain significantly limits functional ability during any flare-ups. All limitation of function must be identified. The examiner must specifically address whether the Veteran has radiculopathy of the lower extremities. The October 2012 private treatment record showing bilateral epidural steroid injections for treatment of lumbar radiculopathy, the April 2013 treatment record noting a report of radiculopathy, and an April 2015 private treatment record showing intermittent radicular pain must be specifically discussed. The examiner must fully describe all symptomatology and functional effects associated with this condition. A rationale must be given for all opinions rendered. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bess, T. 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.