Citation Nr: 22019748 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 10-16 396 DATE: April 2, 2022 REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome (IVDS) prior to November 17, 2016, is remanded. Entitlement to a rating in excess of 40 percent for lumbar spine IVDS from November 17, 2016, is remanded. Entitlement to an initial rating in excess of 10 percent for sciatic radiculopathy of the left lower extremity prior to August 15, 2019, is remanded. Entitlement to a rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity from August 15, 2019, is remanded. Entitlement to a separate compensable rating for sciatic radiculopathy of the right lower extremity prior to August 15, 2019, is remanded. Entitlement to a rating in excess of 10 percent for sciatic radiculopathy of the right lower extremity from August 15, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1989 to September 1999 and his decorations include the Southwest Asia Service Medal. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before a Veterans Law Judge in April 2014; that Veterans Law Judge has since left the Board and is no longer available to participate in this case. In an October 2020 letter, the Board informed the Veteran of this fact and also informed him of his right to another hearing before another Veterans Law Judge. As of this decision, the Veteran has not responded to that October 2020 letter and the Board will proceed with adjudication of his claim at this time. This appeal was last before the Board in January 2021. In May 2020, the United States Court of Appeals for Veterans Claims (Court), on the basis of a Joint Motion for Partial Remand (Joint Motion), vacated and remanded the Board's decision to the extent that it denied the Veteran's claims. The parties to the Joint Motion agreed that the Board failed to ensure reasonable efforts were made to obtain all of the Veteran's adequately identified, relevant private treatment records. Specifically, Dr. W. A. F., D.C., submitted a medical opinion on the Veteran's behalf in January 2017: noting that the Veteran had been under his care for back, neck, and extremity pain since May 16, 2014. As records of such treatment have not been obtained, remand is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for any clinician who has treated the disabilities on appeal, to specifically include Dr. W. A. F., D.C. Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. 3. Notify the Veteran that he may submit (i) lay statements from himself and from other individuals who have first-hand knowledge of the impact of his service-connected disabilities (i.e., back and radiculopathy) on his ability to work and (ii) a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to clarify his education and occupational history. 4. Afford the Veteran a VA examination determine the nature and severity of his lumbar spine and lower extremity impairment. The examiner should identify all lumbar spine pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (in the case of the right shoulder). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. 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 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 the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If possible, the examiner should describe the severity of the right lower extremity and left lower extremity impairment throughout the appeal. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.