Citation Nr: 18145652 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-38 386A DATE: October 29, 2018 REMANDED Entitlement to an initial evaluation in excess of 10 percent for lumbar spine strain with transitional vertebrae, lumbar spine degenerative arthritis, and intervertebral disc syndrome, prior to November 15, 2011, and in excess of 40 percent thereafter, is remanded. Entitlement to an initial evaluation in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial evaluation in excess of 20 percent for right lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1980 to October 1986. This appeal to the Board of Veterans' Appeals (Board) arose from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in October 2011. The Veteran perfected an appeal. See December 2011 Notice of Disagreement (NOD); September 2014 Statement of the Case (SOC); November 2014 VA Form-9. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 1. Lumbar spine strain with transitional vertebrae, lumbar spine degenerative arthritis, and intervertebral disc syndrome The Veteran is service connected for lumbar spine strain with transitional vertebrae, lumbar spine degenerative arthritis, and intervertebral disc syndrome, evaluated as 10 percent disabling, prior to November 15, 2011, and 40 percent thereafter. He contends that his disability warranted an initial evaluation in excess of 10 percent, and is more severe than is reflected by his current 40 percent rating. The Veteran was last afforded a VA spine examination in September 2014, more than four years ago. The Veteran, through his representative, submitted a written brief in March 2015 that argues that the Veteran met the criteria for a higher initial rating from the date of his claim, and that his back condition has become worse since his last VA examination. The Veteran claims that his current level of disability has progressively worsened with increased painful motion, numbness, and weakness, which severely limits his daily functioning in that he is unable to stand, sit, or walk for prolonged periods of time. See March 2015 Statement of Accredited Representative. In a January 2017 examination for housebound status, it was noted that the Veteran’s wife shaved him and washed his lower extremities due to back pain and the Veteran’s inability to bend forward. It was further noted that the Veteran was in an orthotic back brace and ambulated with a cane. The examiner observed that the Veteran had good posture and was able to get on the examination table with the assistance of his cane only. Nonetheless, the Veteran reported that he could not perform lumbar flexion or extension due to back pain, and the examining physician noted decreased range of motion of the Veteran’s trunk. The Board notes that although the January 2017 examination discussed the symptoms of the Veteran’s lumbar spine condition, it contained no range of motion measurements or estimates, nor a clear assessment of the current level of severity of the Veteran’s lumbar spine disability. The Veteran’s lumbar spine disability is rated under Diagnostic Code 5243-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. Diagnostic Code 5243 pertains to intervertebral disc syndrome. The criteria for DC 5243 are based upon the number of incapacitating episodes a Veteran has in a 12-month period. Incapacitating episodes are defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Diagnostic Code 5242 pertains to degenerative arthritis of the spine, and is rated under the general rating formula for diseases and injuries of the spine. The Veteran's lumbar spine disability may be rated either under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation. The Veteran’s current 40 percent evaluation is based on evidence of forward flexion of the thoracolumbar spine 30 degrees or less. The September 2014 VA examination documented forward flexion to 15 degrees, with objective evidence of painful motion beginning at 5 degrees, with no evidence of ankylosis. The September 2014 examiner indicated that the Veteran did not have IVDS, despite earlier diagnoses of such. No discussion or explanation was offered as to the examiner’s change in the Veteran’s diagnosis. As there was no finding of IVDS on this examination, the examiner provided no indication of whether the Veteran suffered from incapacitating episodes, and if so, the frequency and duration of such episodes. It was noted that the Veteran reported flare-ups which impacted the function of his back, and which he described as having days when was unable to get out of bed. To warrant a higher rating, the Veteran’s lumbar spine disability would have to manifest as unfavorable ankylosis of the entire thoracolumbar spine, or result in incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Although the Veteran has not specifically asserted that he has unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of at least 6 weeks duration, he has indicated an inability to bend forward or to perform lumbar flexion and extension, and generally asserted that his condition has worsened. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination when there is evidence of a change in the disability since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Based on the Veteran's assertions that his lumbar spine disability has worsened, the fact that the last VA examination regarding the Veteran's low back disability was over four years ago, and the unexplained finding of the September 2014 VA examiner that the Veteran did not have IVDS, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected lumbar spine strain with transitional vertebrae, lumbar spine degenerative arthritis, and intervertebral disc syndrome. Caffrey v. Brown, 6 Vet. App. 377 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). 2. Bilateral lower extremity radiculopathy The Veteran contends that his left and right lower extremity radiculopathy are more severe than is reflected by his current 20 percent rating. Service connection was granted for left and right lower extremity radiculopathy in the September 2014 rating decision on appeal and evaluated as 20 percent disabling from April 25, 2012. The Veteran disagrees with the findings of the September 2014 VA examiner, who characterized the nature of the Veteran’s bilateral radiculopathy as moderate. He cites the examination findings of intermittent pain, paresthesia/numbness, and total absence of hair on the bilateral lower extremities, from the knees down as evidence that the severity of his condition is more than moderate. The Veteran further noted functional limitations associated with his condition that do not allow for lifting, carrying, reaching, prolonged ambulation or prolonged standing or sitting. In addition to the disagreement with his initial evaluation, the Veteran asserts that his condition has progressively worsened. See March 2015 Statement of Accredited Representative; See also, Snuffer; Caffrey, supra. On a January 2017 examination for housebound status, the examiner noted lower extremity strength as 5 out of 5, with no atrophy of the lower extremities. The Veteran displayed a slow, steady gate, had good weight-bearing ability, and was able to get on the examination table with assistance of his cane only. See January 2017 Examination for Housebound Status. As with his lumbar spine disability, the Veteran has alleged worsening of his bilateral lower extremity radiculopathy. Although the January 2017 housebound examination addressed restrictions of the lower extremities, with some discussion of the Veteran’s symptoms, there was no assessment of the severity of the Veteran’s bilateral lower extremity radiculopathy. Moreover, as the Veteran’s bilateral lower extremity radiculopathy has been found to be related to his service-connected lumbar disability, the Board finds that the Veteran’s claims for initial evaluations in excess of 20 percent for right and left lower extremity radiculopathy are inextricably intertwined with the Veteran’s increased rating claim for his lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); 2007). (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Thus, on remand, in conjunction with the updated lumbar spine examination ordered above, an examination of the Veteran’s bilateral lower extremities should be performed, and the examiner should provide an assessment of the current severity of the Veteran’s service-connected bilateral lower extremity radiculopathy. As the case is being remanded, the Veteran should be given another opportunity to identify any records of private medical treatment that he would like to submit or have VA obtain. Any outstanding and updated VA treatment records should also be associated with the claims file. Accordingly, the matters are REMANDED for the following action: 1. Ask the Veteran to identify, and authorize VA to obtain, any non-VA treatment records pertaining to the disabilities on appeal. The RO should also obtain any outstanding, relevant VA treatment records and associate them with the Veteran’s claims file. If any requested records cannot be obtained, notify the Veteran of the missing records, the efforts made to obtain the records, and further actions that will be taken with regard to the claims on appeal. 2. After all available records have been associated with the claims file, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service connected lumbar spine strain with transitional vertebrae, lumbar spine degenerative arthritis, IVDS, and bilateral lower extremity radiculopathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file (to include a copy of this remand) and to comment on the severity of the Veteran's service-connected disabilities. The examiner should report all signs and symptoms necessary for rating the lumbar spine strain with transitional vertebrae, lumbar spine degenerative arthritis, IVDS, and bilateral lower extremity radiculopathy under the rating criteria. Full range of motion testing must be performed where possible. The lumbar spine should be tested in both active and passive motion, in weightbearing and non-weightbearing. 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 document the number of weeks, if any, during the past 12 months, that the Veteran has had intervertebral disc syndrome with "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If the examiner finds that the Veteran does not have a current diagnosis of IVDS, he or she should provide an explanation in support of the finding and reconcile such with the previous diagnoses of IVDS contained in the record. The examiner should note the presence or absence of unfavorable ankylosis of the lumbar spine, and/or unfavorable ankylosis of the entire spine. The examiner should identify any nerves and muscle groups affected and state whether the level of impairment is best characterized as mild, moderate, moderately severe, or severe. If any nerve involvement is wholly sensory, the examiner should so indicate. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to Board, if otherwise in order, for further review. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Lewis