Citation Nr: 20036723 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 16-53 823 DATE: May 28, 2020 REMANDED Entitlement to a rating in excess of 60 percent for service-connected degenerative joint disease of the lumbar spine with intervertebral disc syndrome (IVDS) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1960 to January 1964. This matter comes before the Board of Veterans’ Appeals (Board) subsequent to an April 2018 Board remand, on appeal of a June 2015 rating decision promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A post-remand Supplemental Statement of the Case (SSOC) was issued to the Veteran in February 2020. The Veteran subsequently submitted a waiver of Agency of Original Jurisdiction (AOJ) consideration, thereby allowing the Board to review evidence in the first instance. See Waiver (rec’d Mar. 12, 2020 ). The Board accordingly reasserts jurisdiction over the Veteran’s claim. This claim has been advanced on the docket on account of the Veteran’s age. 38 C.F.R. § 20.900. Entitlement to a rating in excess of 60 percent for service-connected degenerative joint disease of the lumbar spine with IVDS is remanded. While the Board sincerely regrets additional delay in adjudicating the Veteran’s claim, an additional remand is required to fully consider the Veteran’s contentions. By way of background, the Veteran has been service-connected for degenerative joint disease of the lumbar spine with intervertebral disc syndrome (IVDS) since December 4, 2014. Except for a period of temporary total disability rating from January 20, 2015 to December 1. 2015, 38 C.F.R. § 4.30, this disorder has always been rated at 60 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243. See also, e.g.: Rating Decision ( Codesheet ) (Oct. 2018). In the June 2015 rating decision on appeal, the RO continued the 100 percent convalescent rating as was in effect at that time and determined that the rating should be 60 percent, effective December 1, 2015. The Veteran filed a timely and valid Notice of Disagreement to that rating decision in November 2015. See NOD (rec’d Nov. 30, 2015 ). Under 38 C.F.R. § 4.71a, disorders between Diagnostic Codes 5235 to 5243 (inclusive) are generally rated according to the General Rating Formula for Diseases and Injuries of the Spine. An exception is made for IVDS, Diagnostic Code 5243, which may be alternatively evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes—whichever one yields a more favorable rating to the Veteran. Under the General Rating Formula for the spine, a 50 percent rating is afforded for unfavorable ankylosis of the entire thoracolumbar spine, but a 100 percent rating is afforded for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Meanwhile, the Veteran has been afforded a maximum 60 percent rating under the IVDS Formula throughout the period on appeal, except for a temporary total disability rating. Id. The Board acknowledges that the Veteran’s claim was remanded in April 2018 in order to clarify whether or not his spine disorder manifests in ankylosis. While a May 2019 VA examiner opined that the Veteran does not suffer from ankylosis, a July 2019 VA examiner arrived at a contrary conclusion that the Veteran does in fact suffer from ankylosis. See VA Examinations ( May 15, 2019, at Questions Nos. 9 and 17 at “Additional Question No. 4;” July 26, 2019 ). Simply whether or not the Veteran suffers from ankylosis of the spine is insufficient to adjudicate the Veteran’s claim at this time. As recounted above, if the Veteran’s spinal disorder should manifest in unfavorable ankylosis of the entire spine, then that would raise the possibility of entitlement to a 100 percent rating, i.e.: a rating in excess of the current 60 percent rating. Unfortunately, even though the July 2019 VA examiner provided a positive opinion in support of the Veteran’s contention of ankylosis, this opinion fails to set forth whether his ankylosis is (a-i) favorable or (a-ii) unfavorable, and (b-i) of the entire cervical spine only, (b-ii) of the entire thoracolumbar spine only, or (b-iii) of the entire spine. As the July 2019 opinion fails to classify the Veteran’s ankylosis to this specificity, the Board remands to the AOJ, in order to obtain a necessary addendum opinion about the Veteran’s ankylosis—in other words, not just whether ankylosis is present, but to what degree and as affecting which region/s of the spine. The matter is REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Forward the entire claims file and a copy of this Board remand to the July 2019 VA examiner who provided an opinion suggesting that the Veteran may exhibit ankylosis of the spine. If this July 2019 examiner is not available, then the AOJ should instead forward the above to a similarly qualified VA examiner. Whether or not the Veteran is required to submit to an updated in-person examination is left to the discretion of the examiner. Any indicated diagnostic tests and studies must be accomplished. The examiner should specifically indicate whether the Veteran has: (a.) Favorable ankylosis of the entire cervical spine, (b.) Unfavorable ankylosis of the entire cervical spine, (c.) Favorable ankylosis of the entire thoracolumbar spine, (d.) Unfavorable ankylosis of the entire thoracolumbar spine, or (e.) Unfavorable ankylosis of the entire spine. The examiner should also indicate whether any such 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. If the examiner finds that there is no ankylosis in the Veteran’s spine, then such a finding should be reconciled with the affirmative July 2017 private treatment note and the July 2019 medical opinion. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.