Citation Nr: 22018644 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 15-26 088 DATE: March 30, 2022 REMANDED Entitlement to an increased rating in excess of 30 percent, for paresthesias with weakness, left quadriceps and anterior thigh already compensated under Diagnostic Code 8526 (claimed as left foot drop), to include under extraschedular criteria and/or a separate rating, is remanded. Entitlement to an increased rating in excess of 30 percent for a neck disability is remanded. Entitlement to an increased rating in excess of 40 percent for a back disability is remanded. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(k) or (l) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1974 to August 1995. The Board notes that the Veteran's claims herein have had a long and complex procedural history which was comprehensively detailed in Board previous December 2019 decision/remand. That procedural history is therefore incorporated herein for reference. With regards to the Veteran's claim since that decision, the Veteran's claims outlined herein, was denied by the Board in a February 2021 decision, excluding the Veteran's claim for a TDIU. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2021 Joint Motion for Remand (JMR), the Court vacated the Board's decision and remanded the issues for appropriate action. The matters are again before the Board for review consistent with the JMR. With specific regards to the Veteran's claim for a left foot drop condition, the Board notes that in both the Court's previous vacatur and remands of the Board's denial of this claim, the Court has repeatedly expressed the need for this claim to be recharacterized. Specifically, in the most recent November 2021 JMR, the Parties explicitly noted that while the Veteran's initial claim for his left foot drop condition may have been construed as a claim for service connection for a left foot drop disability, such narrow characterization of the claim, especially in light of his already service-connected disabilities to the left leg is in error. The JMR noted that as the Veteran's claim for a left foot drop is a symptom of the Veteran's already service-connected disabilities of the left leg, to include for paresthesia (Diagnostic Code 8526) and radiculopathy of the sciatic nerve (Diagnostic code 8520), such claim must be considered as an increased rating claim. Here, the Board has recharacterized the Veteran's claim to reflect this interpretation of the claim, and to clearly address the Veteran's claimed symptoms in terms of his already service-connected left leg disabilities. In characterizing the Veteran's claim as an increased rating claim, any disability found outside of the criteria set out by the applicable Diagnostic Code can be granted on an extraschedular basis; as such, the claim has been characterized as to reflect such consideration. With regards to the Veteran's claim for a TDIU, the Board notes that while this claim was not previously denied by the Board, the November 2021 JMR noted that such claim was adequately invoked by the Veteran and the evidence during the pendency of the Veteran's claim for increased rating. As such, under Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009), because it was raised during the appeal of the Veteran's claims for increased rating, it is a component of that claim for benefits related solely to those disabilities. Here, the JMR noted that regardless the concurrent/pending TDIU claim adjudicated by the RO, the Board must take on the Veteran's claim for a TDIU. As such, the Board has included such claim herein, as part and parcel of the Veteran's increased rating claims. 1. Entitlement to an increased rating in excess of 30 percent, for paresthesias with weakness, left quadriceps and anterior thigh already compensated under Diagnostic Code 8526 (claimed as left foot drop), to include under extraschedular criteria and/or a separate rating is remanded. 2. Entitlement to an increased rating in excess of 30 percent for a neck disability is remanded. 3. Entitlement to an increased rating in excess of 40 percent for a back disability is remanded. 4. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(k) or (l) is remanded. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board notes that a remand by the Court confers on the Veteran the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). Here, the Veteran's claim for increased rating and SMC was remanded by the Court to make additional attempts to acquire medical records during a period of hospitalization during the appeals period. Here, the JMR noted that the VA's previous, singular, attempt to acquire such records from the UNM Hospital was inadequate to meet the VA's duty to assist the Veteran. Indeed, a close review of the record reveals that the RO made a single attempt in January 2020 in a letter sent to UNM Hospital requesting medical treatment records. In response, the UNM Hospital request a duly executed authorization form from the VA. However, despite having such authorization form, which was completed and submitted by the Veteran to the VA, and is of record, the RO failed to provide such form to the Hospital, and no additional request for record were attempted. The JMR found such efforts to obtain these records to be inadequate; the Board agrees. As such, remand is required for the VA to fulfill its duty to the Veteran and make additional attempt to acquire these treatment records. Additionally, with regards to the Veteran's claims for increased rating, the Veteran last underwent VA examinations for these conditions in February 2020, to assess the nature and severity of his back, neck, and left leg disabilities. The Board finds that although VA examinations do not necessarily expire or go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board's evaluation of the claimed disabilities to be a fully informed decision. Barr v. Nicholson, 21 Vet. App. 303 (2007). As more than two years have passed since the most recent VA examinations remand is also necessary to determine the current severity level of the Veteran's disabilities. The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records. 2. With specific regards to the Veteran's hospital records from UNM Hospital noted by the Veteran, the RO must make at least two attempt to obtain the Veteran's treatment records. Each attempt to acquire these records should include sending the appropriate documentation for release of medical records, to include, but not limited to, the Veteran's authorization form, which is already of record. Each attempt to acquire such records should be explicitly documented by the RO and made of record. If after two separate attempts to acquire the records the RO determine that any further attempts to be futile, such should make an explicit finding in the record, and documenting previous efforts. 3. Then, schedule the Veteran for VA examinations to assess the current nature and severity of service-connected back and neck disabilities. The examiner must review the claims file and should note that review in the report. The examiner should provide a complete rationale for all conclusions reached. The examiner must provide a retrospective opinion with regards to the Veteran's earlier complaints of radiculopathy, to this end, the examiner must explicitly address the December 2011 VA examination and April 2011 private treatment record, which noted radicular symptoms to include pain and numbness. Additionally, the examiner should provide an opinion regarding the functional impairments caused by the Veteran's orthopedic disabilities, occupationally, and speak to whether such conditions prevent the Veteran from obtaining and sustaining gainful employment. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.