Citation Nr: 20021687 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 04-08 751 DATE: March 26, 2020 REMANDED Entitlement to a rating in excess of 40 percent for lumbar myositis (previously rated as lumbar myositis and radiculopathy) is remanded. Entitlement to an initial evaluation in excess of 20 percent for right lumbar radiculopathy associated with lumbar myositis is remanded. Entitlement to an initial evaluation in excess of 20 percent for left lumbar radiculopathy associated with lumbar myositis is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to August 26, 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This matter was previously before the Board in October 2006, wherein the Board issued a decision that denied a disability rating in excess of 40 percent for lumbar myositis and radiculopathy. The Veteran appealed this decision to the Court. In a December 2007 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the October 2006 decision back to the Board as duty to assist requirements were not met. This matter was originally before the Board on appeal from an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. This matter was thereafter before the Board in May 2009 and June 2017 when the Board remanded the issues for further development. The case has now been returned to the Board for further adjudication. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a rating in excess of 40 percent for lumbar myositis In February 2020, the Veteran’s representative submitted correspondence indicating that the November 2017 VA spine examination was inadequate. Specifically, she stated that the VA examiner failed to provide an opinion about additional limitation of motion during flare-ups and failed to include testing for pain on both active and passive motion, and in weight-bearing and non-weight-bearing. The Board agrees with the Veteran’s representative as there are certain requirements for musculoskeletal examinations that must be adhered to prior to rending a decision. Regarding the VA lumbar spine examination from November 2017, the Board notes that the Court issued a decision which mandated new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the lumbar spine, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on 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. Id.; see also 38 C.F.R. § 4.59. Upon review of the Veteran's VA examinations performed during the course of the appeal, it does not appear that such conformed to the Court's holdings in Correia. For example, there is no indication in the November 2017 examination whether the range of motion obtained at this examination is active or passive or in weight-bearing or non-weight-bearing. Furthermore, the November 2017 VA examiner noted that there was evidence of pain on passive, weight-bearing, and non-weight-bearing range of motion, but did not report the range of motion at which pain began and did not delineate the range of motion upon active motion, passive motion, weight-bearing, and non-weight-bearing. Additionally, the Court has recently addressed 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard should, if feasible, be portrayed in terms of the degree of additional loss of range of motion due to pain on use or during flare-ups. In this regard, the Court concluded that, when a VA examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, the examiner must obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court further concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of range of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Here, the Veteran was most recently afforded a VA examination in November 2017, as directed in the June 2017 Board remand. The VA examiner stated that pain at the lumbar spine could significantly limit functional ability during flare-ups or when the joint is used over a period of time. She further stated that to express additional limitation due to pain in terms of degrees of additional range of motion is not possible in view that it should be documented during a positive flare-up period not during a regular medical evaluation. She concluded that such additional limitation could not be expressed in terms of additional range of motion because it will be speculative in view that today is not a positive flare-up episode. As noted above, the Court in Sharp, expressly stated that the examiner should provide an opinion based on estimates derived from information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. To this end, the Veteran should have been asked to describe the functional loss he experiences during the flare-ups and from there, the VA examiner should have then estimated functional loss or explain why the examiner could not do so. Thus, the rationale the examiner provided regarding the additional range of motion loss due to the Veteran’s limitations is inadequate under Sharp, as it is unclear whether the examiner considered all procurable data, including information regarding frequency, duration, characteristics, severity, and/or functional loss related to such repeated use and flare-ups elicited from the Veteran. The VA examiner should also address whether the Veteran's chronic low back pain symptoms are equivalent to unfavorable ankylosis during a flare-up or with repeated use over time. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. As the examinations performed during the course of the appeal do not conform to the Court's holdings in Correia and Sharp, a remand is necessary in order to afford the Veteran a VA examination for the lumbar spine that addresses such matters. 2. Entitlement to an initial evaluation in excess of 20 percent for right and left lumbar radiculopathy associated with lumbar myositis In March 2019, during the course of the Veteran’s claim for an increased rating for the service-connected lumbar myositis, the RO granted separate evaluations for radiculopathy of the right lower extremity and left lower extremity as secondary to the Veteran’s service-connected lumbar myositis. These issues are part and parcel of the original claim for an increased rating for the service-connected lumbar myositis. As the Veteran has not been granted the maximum benefit allowed for these conditions for the entire appeal period, the claim is still active, as characterized on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran’s increased rating claims for his right and left lower extremity radiculopathy are inextricably intertwined with his claim for increase for lumbar myositis as that development may provide relevant evidence as to the Veteran’s bilateral lower extremity radiculopathy claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also AB, 6 Vet. App. at 39 (providing that a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). 3. Entitlement to a TDIU prior to August 26, 2010 With respect to the claim for TDIU, because the resolution of the claims being remanded could impact the adjudication of this claim, the claim for TDIU must be deferred at this time. Id. A review of the VA-21-8940 shows that the Veteran indicates different years of employment in each document. Additional information is required to make a decision on this issue. The matters are REMANDED for the following action: 1. Obtain VA treatment records from January 2016 to present. All reasonable attempts should be made to obtain any identified records. 2. After completing the above development, schedule the Veteran for a VA examination to assess the severity of the service-connected lumbar spine disability and bilateral lower extremity radiculopathy. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Specifically, the Veteran’s lumbar spine should be tested for pain in both weight-bearing and non-weight-bearing positions, and on both active and passive motion. If this cannot be performed, the examiner should explain why. The examiner should record the range of motion of the joints observed on clinical evaluation in terms of degrees. The examination must include testing results of both active and passive motion, and in weight-bearing and non-weight-bearing. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If the Veteran reports flare-ups, the examiner should ask him to report or demonstrate his range of motion during the flare-ups. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner must also provide an opinion as to whether the Veteran's chronic low back pain symptoms are equivalent to unfavorable ankylosis with repeated use over time and/or during a flare-up. If the VA examiner is unable to report the degree of additional range of motion loss during repeated use or a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during on repeated use or flare-ups or explain why it is not feasible to render such an opinion. If the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion on repeated use or flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner must also identify and discuss the nature and extent of any lower extremity radiculopathy. The examiner should opine, to the extent possible, as to whether such results in complete paralysis or “mild,” “moderate,” “moderately severe,” or “severe” incomplete paralysis. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran’s lumbar spine disability and any lower extremity radiculopathy on his daily activities and employability. All opinions expressed should be accompanied by supporting rationale. Ask the Veteran to provide IRS tax returns from 2000 through 2011 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2000 thru 2011 and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, Associate 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.