Citation Nr: 20021298 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 04-38 885 DATE: March 25, 2020 REMANDED The issue of entitlement to an initial rating greater than 10 percent prior to July 24, 2006, and greater than 20 percent thereafter, for degenerative disc disease of the thoracic spine on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1998 to October 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted entitlement to service connection for degenerative disc disease of the thoracic spine and assigned a 10 percent disability rating. In an August 2006 rating decision, the RO increased the rating for the Veteran’s thoracic spine condition to 20 percent, effective from July 24, 2006. In a May 2007 decision, the Board, in pertinent part, denied increased ratings for the Veteran’s thoracic spine condition. The Veteran requested reconsideration of this Board decision in September 2007. The Board denied the Veteran’s reconsideration motion in February 2008. The Veteran then appealed the Board’s May 2007 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2010 Memorandum Decision, the Court vacated and remanded that part of the Board’s May 2007 decision which denied the Veteran’s higher initial rating claim for degenerative disc disease of the thoracic spine. In January 2011 and April 2012, the Board remanded the Veteran’s claim for further development. Thereafter, in a December 2012 decision, the Board denied the Veteran’s claim for higher ratings for his thoracic spine disability. The Veteran again appealed to the Court. In an April 2014 Memorandum Decision, the Court vacated and remanded the Board’s December 2012 decision. In an October 2014 decision, the Board denied increased schedular ratings for the Veteran’s thoracic spine disability and remanded the issue of increased ratings on an extraschedular basis for referral to the Director, Compensation Service. In a March 2015 administrative decision, the Director, Compensation Service, made a determination that the Veteran was not entitled to an extra-schedular evaluation for his service-connected thoracic spine disability. Thereafter, in a July 2015 decision, the Board denied entitlement to increased ratings for the Veteran’s thoracic spine disability on an extraschedular basis. The Veteran appealed the Board’s July 2015 decision to the Court, which, by Order dated in May 2016, granted a May 2016 Joint Motion for Remand (JMR) and remanded the issue for compliance with instructions in the JMR. In June 2016, the Board again denied entitlement to increased ratings for the Veteran’s thoracic spine disability on an extraschedular basis. The Veteran again appealed to the Court. The Court stayed the appeal pending the Court’s decision in another case. In a July 2019 Memorandum Decision, the Court lifted the stay and vacated and remanded the Board’s June 2016 decision. In its July 2019 memorandum decision, the Court essentially found that the Board’s June 2016 decision was not in accord with Morgan v. Wilkie, 31 Vet. App. 162 (2019). Specifically, the Court in Morgan held that VA’s duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability, including (1) considering secondary service connection; (2) assigning higher ratings where there is a question as to which of two evaluations shall be applied if the disability picture more nearly approximates the criteria for that rating; (3) resolving reasonable doubt in favor of the Veteran; and (4) considering entitlement to a TDIU, before an extraschedular analysis is triggered. The Board notes that the Court’s July 2019 memorandum decision presents a bit of an analytical quandary in that the Veteran did not appeal the October 2014 Board decision denying increased schedular ratings. Nevertheless, the Board is bound by the directives of the July 2019 memorandum decision in this case. In any event, the Board notes that it is not clear whether the evidence of record adequately reflects the current nature and severity of the Veteran’s service-connected thoracic spine disability. Specifically, the record reflects the Veteran last underwent a VA examination of his disability in October 2011. Therefore, a remand is required for a new examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As a remand is otherwise required, the applicability of the Court’s holding in Morgan, supra, should be addressed by the agency of original jurisdiction (AOJ) in the first instance. Additionally, the Board notes that in several statements, the Veteran has described possible sleep and mental health difficulties stemming from his thoracic spine disability. See, e.g., November 2004 VA Form 9 (describing sleep problems); August 2006 Statement (stating that his thoracic spine pain makes him angry and irritable). Unfortunately, the Veteran has not filed claims for service connection for these disabilities, and the Board is without the authority to adjudicate such in the first instance. Therefore, the Veteran should be given the opportunity to file any claims to establish service connection for additional conditions as secondary to his service-connected thoracic spine disability. Finally, as there have been no treatment records added to the claims file since 2006, any updated VA or private treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records documenting treatment for the issues on appeal. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have treated her for the issues on appeal. After securing any necessary releases, request any identified records that are not duplicates of those already associated with the claims file. If any requested records cannot be obtained, the Veteran should be notified of such pursuant to 38 C.F.R. § 3.159 (c). 3. Advise the Veteran that he may file a claim for entitlement to service connection for any additional disabilities he believes may stem from his service-connected thoracic spine disability, to possibly include a sleep condition and/or a mental health condition. 4. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected thoracolumbar spine disability. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished, and the examiner is requested to report complaints and clinical findings in detail. After review of the claims file and examination of the Veteran, the examiner should describe the nature and severity of all manifestations of the Veteran’s thoracic spine disability. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of extension, forward flexion, left and right lateral flexion, and left and right rotation. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion, extension, and/or rotation at which such pain begins. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for the thoracolumbar spine on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the thoracolumbar spine cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. The examiner should also express an opinion concerning whether there would be additional functional impairment, such as weakness, excess fatigability, incoordination, or pain, on repeated use or during flare-ups. The examiner should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. If the Veteran denies any additional pain and/or functional limitation during flare-ups or with repeated use over time, such should be noted in the report. However, if the Veteran is not currently experiencing a flare-up and/or if the Veteran has not been evaluated after repeated use over time, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares or after repeated use over time expressed in terms of the degree of additional range of motion lost, or explain why he or she cannot do so. If the examiner is unable to estimate functional loss in terms of degrees after physical examination and eliciting the pertinent information discussed above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or after repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). If range of motion is not possible, the examiner should indicate whether the Veteran has favorable or unfavorable ankyloses of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. The examiner should also state whether the Veteran’s service-connected low back disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment (mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerve). The examiner should specifically indicate whether the Veteran has bowel or bladder impairment, erectile dysfunction, or right and/or left lower extremity radiculopathy as a result of his back disability. The examiner should also state whether the Veteran has incapacitating episodes of low back pain, and if so, the duration of the episodes. Finally, the examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran’s thoracic spine disability has upon his ability to perform ordinary activities of daily living. The examiner should conduct any appropriate tests and studies in order to determine the nature and extent of the social and industrial impairment attributable to the service-connected thoracic spine disability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. In so doing, the AOJ must consider the Court’s holding in Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019), to include the question of whether higher or separate ratings can be assigned for functional impairment caused by the Veteran’s thoracic spine disability under other diagnostic codes. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be allowed an appropriate period of time for response. The case should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kipper, 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.