Citation Nr: 22016993 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 09-33 956 DATE: March 23, 2022 REMANDED Entitlement to a higher initial evaluation for right lower extremity radiculopathy, rated noncompensable prior to August 9, 2010 and 10 percent disabling since that date, is remanded. Entitlement to a higher initial evaluation for left lower extremity radiculopathy, rated noncompensable prior to January 9, 2018 and 10 percent disabling since that date, is remanded. Entitlement to a disability evaluation in excess of 20 percent for degenerative arthritis, disc disease, intervertebral disc syndrome and scoliosis of the lumbar spine (spine disability), prior to September 1, 2021, is remanded. Entitlement to a disability evaluation in excess of 40 percent for a spine disability, beginning September 1, 2021, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1972 to August 1989. It has previously been determined that he is ineligible for payment of Department of Veterans Affairs (VA) benefits based on his service from May 15, 1987 to August 1989. See April 1990 Administrative Decision. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by a VA Regional Office (RO). In November 2008, the Veteran was granted a 10 percent rating for his spine disability. In an October 2014 rating decision, the disability rating was increased to 20 percent, effective May 25, 2013 and in a December 2021 rating decision, the rating was increased to 40 percent, effective September 1, 2021. This matter was previously before the Board in February 2013, December 2017, November 2019, January 2021 and June 2021. In February 2013 and December 2017, the issue of entitlement to an increased rating for the spine disability was remanded for additional development. In November 2019, the Board granted an earlier effective date of the 20 percent rating, but denied a rating in excess of 20 percent. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court issued an Order granting an August 2020 Joint Motion for Partial Remand (JMR). That Order, in pertinent part, vacated and remanded the portion of the November 2019 Board decision that denied entitlement to a disability rating in excess of 20 percent for the spine disability. Following the JMR, the matter was remanded in January and June 2021 for further development. The case is once again before the Board. As a final preliminary matter, in a January 2011 rating decision, the agency of original jurisdiction (AOJ) awarded service connection for right lower extremity radiculopathy and assigned an initial 10 percent disability rating, from August 9, 2010. In a November 2018 rating decision, the AOJ awarded service connection for left lower extremity radiculopathy and assigned an initial 10 percent disability rating, from January 9, 2018. The Board has included the separate issues of entitlement to higher initial ratings for left and right lower extremity radiculopathy because these issues are being considered as part of the claim for an increased rating for the service-connected back disability. See 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (providing that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code). Since the claim period for the back issue dates back to June 20, 2008, the Board has characterized the radiculopathy issues as listed above. The Board regrets the delay associated with this remand. However, another remand is necessary to ensure that the Veteran is afforded full compliance with the statutory duty to assist. A remand is necessary to determine the severity of the Veteran's spine disability and associated lower extremity neurological disability while discounting the ameliorative effects of medication. The Veteran underwent VA spine examinations in August 2008, October 2010, May 2013, January 2018, March 2021 and September 2021. The Veteran asserted the ameliorative effects of his medication were not considered when his disability was evaluated. See March 2021 Correspondence. In August 2008, the Veteran stated he tried physical therapy, injections and medication with some relief; however, it was unclear whether the Veteran had taken any medication the day of the examination. In October 2010, the Veteran reported participating in physical therapy for pain relief, and denied any surgery or injections. In May 2013, the Veteran reported using exercises and heating pads for pain relief. In January 2018, the Veteran reported using an inversion table, TENs device, moist heat, codeine, gabapentin and inflammation shots to treat his back symptoms; but again it was not noted whether he had taken any medication the day of the examination. Lastly, in March 2021, the Veteran reported taking hydrocodone, muscle relaxers and using inversion therapy for pain relief. It is not clear whether the examiners discounted the ameliorative effects of the Veteran's medication, if any, when evaluating his spine and associated neurological symptoms. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). DCs 5243 and 8520 do not contemplate the ameliorative effects of medication and a higher level of disability could possibly be obtained when disregarding the ameliorative effects of any medication taken to treat the symptoms under DCs 5243 and 8520. Thus, an opinion is warranted to determine the severity of the Veteran's spine disability and associated lower extremity neurological disability, without consideration of any ameliorative effects of medication. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Memphis Vista electronic records system and are dated to November 2021. Any VA treatment records are within VA's constructive possession and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for back disability and lower extremity neurological disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for back disability and lower extremity neurological disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding VA treatment records from the Memphis Vista electronic records system for the period since November 2021; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, arrange for an appropriate clinician to review the Veteran's claims file and provide an opinion as to the severity of the service-connected spine disability and bilateral lower extremity radiculopathy throughout the claim period since June 2008. The clinician should also state what the severity of the spine disability and bilateral lower extremity radiculopathy might be when discounting the ameliorative effects of any medication taken to treat the conditions. If this is not feasible, the clinician MUST provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the clinician cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. If an opinion cannot be given without resorting to speculation, the clinician should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the RO should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. If the reviewing clinician finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. The clinician must provide reasons for each opinion given. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, Associate 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.