Citation Nr: 1615435 Decision Date: 04/15/16 Archive Date: 04/26/16 DOCKET NO. 07-07 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a higher initial disability rating (or evaluation) for the service-connected chronic lumbar sprain with degenerative disc disease L4-L5 (hereinafter "lumbar spine disability"), in excess of 10 percent for the period from October 15, 2004 to December 14, 2010, and in excess of 20 percent from December 14, 2010. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from February 1994 to May 1994, from April 1996 to August 1996, and from October 1999 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for lumbar strain and assigned an initial 10 percent disability rating effective October 15, 2004 (the day after separation from active service). A claim for service connection for a lower back injury was received in May 2005 (within one year of service separation). In November 2010, the Board found that the issue of entitlement to a TDIU had been reasonably raised by the record and remanded the issues of a TDIU and an initial disability rating in excess of 10 percent for the lumbar spine disability for additional development. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A December 2011 rating decision granted a 20 percent disability rating for the service-connected chronic lumbar sprain with degenerative disc disease L4-L5 from December 14, 2010 (the date of a VA examination), creating "staged" initial disability ratings. In a March 2013 decision, the Board denied (1) initial disability ratings for the service-connected lumbar spine disability in excess of 10 percent for the period prior to December 14, 2010 and in excess of 20 percent from December 14, 2010, and (2) a TDIU. The Veteran appealed the March 2013 Board decision to the United States Court of Appeals for Veterans Claims (Court). In November 2013, the Court vacated the Board's March 2013 decision pursuant to a Joint Motion for Remand. In May 2014, the Board remanded the issues on appeal for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Initial Ratings for the Lumbar Spine Disability Pursuant to the May 2014 Board remand instructions, the Veteran was afforded a VA examination in June 2014 to assist in determining the severity of the service-connected lumbar spine disability. An addendum medical opinion (with a different VA examiner) was obtained in June 2015. Pursuant to the remand instructions, the VA examiner was asked to opine as to the degree of additional functional loss (if any) due to weakness, fatigue, and incoordination, including during flare-ups, and to express the additional functional limitation in terms of degree of additional limitation of motion due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. The VA examiner was further directed, using the May 2005 and December 2006 VA examination reports as well as the Veteran's lay statements as a guide, to attempt to express the additional functional limitation in terms of degrees of additional limitation prior to December 14, 2010. Even if no flare-ups were reported at the current examination, the VA examiner was told that (s)he must still consider and estimate the degrees of additional functional impairment with respect to flare-ups reported during the earlier part of the appeals period. At the June 2014 VA examination, the Veteran reported progressive, persistent pain and increased flare-ups in the back that occur approximately four to six times per month. The Veteran reported that, if he has to run a quarter of a mile or pick up his child (weighing 25 pounds), he cannot lift the child later or do anything for a couple of days. The June 2014 VA examiner noted that the Veteran was not having a flare-up at the time of the examination and indicated that she could not further report on functional losses other than as reported on the examination report without resorting to speculation. In a June 2015 VA addendum medical opinion, the VA examiner indicated that it was not possible, without mere speculation, to determine prior to December 14, 2010 or to date whether or not or to what degrees flare-ups and/or repetitive use (short or long periods) impact or impacted the Veteran's back function. The June 2014 VA examiner did not address any additional functional impairment prior to December 2010 (as requested by the Board remand instructions). Additionally, neither the June 2014 nor the June 2015 VA examiner provided reasons why the requested opinions as to the degree of additional limitation of motion due to functional impairment, including as due to flare-ups, would require speculation. Service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2015); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). A retrospective medical opinion may be necessary and helpful in cases when the evidence is insufficient for an adequate determination. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate; therefore, the Board is remanding for further VA examination. Further, the June 2014 VA examination report notes that the lumbar spine disability has not been manifested by radicular pain or any other signs or symptoms due to radiculopathy; however, VA treatment records dated after the most recent VA examination indicate that the Veteran has lumbar spine radiculopathy. See e.g. October and December 2015 VA treatment records. In October 2015, the Veteran was seen for increasing lumbar spine pain and a lytic lesion was found over the lumbar spine. Biopsy results reflected lymphoblastic lymphoma. See January 2016 VA treatment record. A March 2016 rating decision denied service connection for acute lymphocytic leukemia and leukocytosis. The Board finds that it is unclear from the evidence of record whether the increased lumbar spine pain and radicular symptoms are related to the service-connected lumbar spine disability or the non-service-connected lymphocytic leukemia and leukocytosis. Based on the above, the Board finds that further examination is required so the decision is based on a record that contains a current examination. See Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991) (where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). TDIU The parties to the November 2013 Joint Motion for Remand agreed that the issue of entitlement to a TDIU was inextricably intertwined with the issue of higher initial disability ratings for the service-connected lumbar spine disability because a hypothetical grant of a higher disability rating could change the adjudication of the TDIU issue because such a grant would increase the overall combined disability rating percentage, and because the disability that the Veteran contends makes him unable to secure substantially gainful employment is the lumbar spine disability. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue); see also November 2013 Joint Motion for Remand at 7. The Board also treated these issues as intertwined in the May 2014 remand. For this reason, consideration of entitlement to a TDIU must be deferred until the intertwined issue is either resolved or prepared for appellate consideration. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination(s) to assist in determining the severity, including limitations and functional impairment, of the lumbar spine disability for the rating period from October 15, 2004 to December 14, 2010, and from December 14, 2010. All indicated tests and studies should be conducted. The VA examiner should review the evidence associated with the record. All indicated tests and studies should be conducted. Following examination of the Veteran, the VA examiner should offer the following opinions: What is the cause of the lower extremity radiculopathy/radicular pain? For the period from October 15, 2004 to December 14, 2010, was there any additional functional loss attributable to pain, weakness, fatigue, or incoordination associated with the lumbar spine disability, to include any loss of range of motion due to pain or during flare-ups? Using the May 2005 and December 2006 VA examination reports (as well as the Veteran's lay statements) as a guide, the examiner should attempt to express the additional functional limitation in terms of the degree of additional limitation of motion prior to December 14, 2010. For the period from December 14, 2010, was there any additional functional loss attributable to pain, weakness, fatigue, or incoordination associated with the lumbar spine disability, to include any loss of range of motion due to pain or during flare-ups? The examiner should express the additional functional limitation in terms of the degree of additional limitation of motion due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. The VA examiner should provide a rationale for all opinions rendered with references to the evidence of record. If an opinion cannot be given without resorting to mere speculation, the VA examiner should state so and further provide a reason for such conclusion. 2. Then readjudicate the issues on appeal in light of all pertinent evidence. If any benefit sought on appeal remains denied, provide the Veteran and representative with a supplemental statement of the case and allow an appropriate time for response. The pending claim of entitlement to a TDIU is inextricably intertwined with the initial rating for back disability issue being remanded herein. As such, consideration of this issue should be deferred until the intertwined issue is either resolved or prepared for appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).