Citation Nr: 18154836 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 07-10 213 DATE: December 3, 2018 REMANDED Entitlement to a rating in excess of 40 percent for spondylolisthesis of L5-S1 with spondylolytic changes and degenerative disc disease (DDD) at L5-S1, is remanded. Entitlement to a separate compensable rating for bowel or bladder impairment associated with the service-connected low back disability is remanded. Entitlement to an initial rating in excess of 10 percent for L5-S1 radiculopathy of the left lower extremity (LLE) prior to August 27, 2012; in excess of 20 percent from August 7, 2012 to January 29, 2015; and in excess of 40 percent from January 30, 2015, is remanded. Entitlement to a separate compensable rating for L5-S1 radiculopathy of the right lower extremity (RLE), prior to August 27, 2012; and an initial rating in excess of 20 percent from August 27, 2012, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to August 27, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from March 1968 to March 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The case has a long and complex procedural history which was provided in detail in the Board’s February 2016 remand. The issues were most recently remanded by the Board in February 2017. In August 2016, a hearing before the undersigned Veterans Law Judge (VLJ) was conducted. A written transcript of the hearing has been prepared and incorporated into the evidence of record. In January 2018, the RO issued a statement of the case (SOC) for the issue of entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment only. However, the Veteran did not submit a timely substantive appeal (VA Form 9). See 38 C.F.R. § 20.200 (2018) (an appeal to the Board consists of a timely filed notice of disagreement (NOD) and, after receipt of a SOC, a timely filed substantive appeal (VA Form 9)). As the Veteran did not perfect his appeal concerning the claim for entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment, this issue is not before the Board. The Veteran’s representative has requested a hearing before a Decision Review Officer (DRO) at the RO. Such a hearing should be scheduled. 1. Entitlement to a rating in excess of 40 percent for spondylolisthesis of the L5-S1 with spondylolytic changes and degenerative disc disease (DDD) at L5-S1, is remanded. A remand is warranted to afford the Veteran a new VA examination to determine the current nature and severity of his low back disability. The Board notes that a 2017 United States Court of Appeals for Veterans Claims (Court) decision addresses what constitutes an adequate explanation for an examiner’s inability to estimate range of motion loss in terms of degrees during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Veteran was afforded a VA examination in January 2015 for his back disability. The VA examiner noted that the VA examination was being conducted after repetitive use over time and during a flare-up. However, the VA examiner noted that he was unable to describe without mere speculation how pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or during flare-ups in terms of range of motion. The VA examiner did not offer any other explanation for such opinion, except that the Veteran was unable to do repeated range of motion. Due to the fact that the January 2015 VA examiner did not ascertain adequate information-i.e. as to frequency, duration, characteristics, severity, or functional loss-regarding additional functional loss over time and or during flare-ups by alternative means, the case must be remanded so the Veteran may be provided another examination to assess the current nature and severity of his service-connected low back disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to a separate compensable rating for bowel or bladder impairment associated with service-connected low back disability is remanded. In its February 2017 remand, the Board remanded the issue of entitlement to a separate compensable rating for bowel or bladder impairment for a VA examination to determine whether it was proximately due to or aggravated by his service-connected back disability. The Veteran was afforded VA examinations for his bowel and bladder conditions in August 2017. Although the VA examiner provided an opinion as to causation, the VA examiner did not provide an opinion on aggravation. Therefore, on remand, the RO should obtain an addendum opinion regarding whether the Veteran’s conditions are aggravated by his service-connected disabilities. 3. Entitlement to an initial rating in excess of 10 percent for L5-S1 radiculopathy of the left lower extremity (LLE) prior to August 27, 2012; in excess of 20 percent from August 7, 2012 to January 29, 2015; and in excess of 40 percent from January 30, 2015, is remanded. 4. Entitlement to a separate compensable rating for L5-S1 radiculopathy of the right lower extremity (RLE), prior to August 27, 2012; and an initial rating in excess of 20 percent from August 27, 2012, is remanded. The Veteran’s claims for a separate compensable rating for L5-S1 radiculopathy of the right lower extremity and increased rating for radiculopathy of the right and left lower extremities are intertwined with the Veteran’s claim for an increased rating for his back disability that is being remanded. Hence, consideration of these claims must be deferred pending resolution of the back disability increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that when a claim is inextricably intertwined with another claim, the claims must be adjudicated together). 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to August 27, 2012, is remanded. The Veteran’s claim of entitlement to a TDIU is inextricably intertwined with the issues being remanded. Hence, consideration of whether the Veteran is entitled to a TDIU must be deferred pending resolution of those claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (when a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA or private treatment records and associate with the claims file. 2. Once the above development has been completed, schedule the Veteran for a VA examination to determine the nature and severity of his low back disability. The examinations should include all tests and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the disabilities. The claims file must be made available to the examiner for review. The VA examiner should then address the following: (a.) The examiner is requested to test the range of motion of the back in active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable). If the examiner is unable to conduct the required testing, or concludes such testing is not necessary, he or she should clearly explain why that is so. (b.) With regard to flare-ups, if the examination does not take place during a flare-up, the examiner should obtain from the Veteran information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner must express an opinion as to whether or not the Veteran’s functional ability is significantly limited during flare-ups, and that determination should, if feasible, be portrayed in terms of the degree of additional loss of range of motion during flare-ups. If the examination is conducted during a flare-up, the examiner should attempt to quantify the additional impairment resulting therefrom and describe the baseline level of disability. (c.) With regard to repetitive use over a period of time, if the Veteran is not being examined after repetitive use over a period of time, the examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from repetitive use over a period of time. The examiner must express an opinion as to whether or not the Veteran’s functional ability is significantly limited after repetitive use over a period of time, and that determination should, if feasible, be portrayed in terms of the degree of additional loss of range of motion. (d.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in the medical community at large and not those of the particular examiner. 3. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran’s bowel and bladder conditions. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should then address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bladder and/or bowel condition is aggravated (worsened beyond normal progression) by his service-connected low back disability. (b.) For the purposes of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995). If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. (c.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in the medical community at large and not those of the particular examiner. 4. Following completion of the above and any other development deemed necessary, the Veteran should be scheduled for a hearing before a DRO at the RO. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel