Citation Nr: 21063300 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 19-12 370 DATE: October 13, 2021 REMAND Prior to July 31, 2017, entitlement to a disability rating greater than 20 percent for service-connected herniated nucleus pulposus of the L5-S1 (hereafter referred to as a "low back disability") is remanded. Beginning September 1, 2017, entitlement to a disability rating greater than 20 percent for service-connected low back disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Prior to September 7, 2018, entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1978 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. As is relevant to these issues, a February 2020 Board Decision (1) reopened the Veteran's claim for entitlement to service connection for a cervical spine disability; (2) remanded entitlement to service connection for a cervical spine disability; (3) denied, prior to July 31, 2017, and beginning September 1, 2017, entitlement to a disability rating greater than 20 percent for service-connected low back disability; (4) granted, beginning September 7, 2018, entitlement to TDIU; and (5) remanded for extraschedular consideration, prior to September 7, 2018, entitlement to TDIU. If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge (VLJ) shall remand the case to the AOJ, specifying the action to be undertaken. 38 C.F.R. § 20.904(a). 1. Entitlement to a disability rating greater than 20 percent, prior to July 1, 2017, and beginning September 1, 2017, for service-connected low back disability is remanded. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC) issue (3) listed above. The Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of a December 28, 2020, Joint Motion for Partial Remand (JMPR). The Parties agreed that the Board erred in relying on August 2012 and April 2018 VA examinations, both of which are noncompliant with Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) (requiring an examiner to list additional loss of range of motion if it is not conducted during a flare-up; or if no such opinion can be given an adequate rationale explaining why not) and Correia v. McDonald, 28 Vet. App. 158, 16970 (2016) (requiring the testing for pain on weight bearing, non-weight bearing, as well as both passive and active motion). The Parties agreed that "remand is necessary for the Board to afford the [the Veteran] a new medical examination that considers his medical history and provides an assessment of Appellant's pervious and current functional loss due to his service-connected lumbar spine condition." JMPR at 4. By a February 1, 2021, Order, the CAVC adopted the Parties' JMPR and remanded the matter back to the Board. Thus, remand is required so that the AOJ can afford the Veteran the opportunity to attend an examination to assess adequately the nature and severity of his service-connected low back disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 20.904(a). 2. Entitlement to service connection for a cervical spine disability is remanded. For this claim, the Veteran alleges that his cervical spine disability is secondary to his service-connected low back disability. See Feb. 21, 2012, VA Form 21-4138. The Board previously instructed VA to secure an adequate secondary opinion. It obtained in August 2020 a new opinion; however, as will be discussed, remand is required for two reasons. First, the new opinion is inadequate. To qualify as adequate, a medical examination and opinion provided for the purposes of assessing secondary service connection must address both whether the claimed disability was proximately caused by some service-connected disability and whether the claimed disability was aggravated (chronically worsened) by some service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 13941 (2013). The opinion stated: 63 yo Veteran who is service connected for his lumbar spine condition w/sciatica and neurogenic bladder. The inciting injury was a ruptured disc at L5-S1 in the early 1980's while doing situps [sic]. For this, he had a lumbar discectomy and foraminotomy in or around 1992. A repeat MRI in 2003 showed bulging disc L4-5, i.e. adjacent segment disease. The VA examiner who offered the opinion dated in Feb. 2013 has now retired. This examiner has 12+ years experience in pain management and spine care with the Dept. of Veteran Affairs, and will provide an opinion based on that knowledge and experience. The lumbar spine has no points of articulation with the cervical spine. Thus, movement of the lumbar spine and/or degeneration of the lumbar spine does not influence the cervical spine, which is 12+ vertebral levels superior to the L-spine. If lumbar degeneration "spreads" it most often affects the level superior to the original insult/injury. This is called ASD, or adjacent segment (level) disease. It is most commonly seen in persons who have had a lumbar fusion, whereby the level of spine which is fused causes biodynamic stressors on the adjacent disc, usually superior to the surgery. Although this Veteran did not have a fusion, his MRI from 2003 did demonstrate mild, disc degeneration at L4-5, the level above his L5-S1 surgery in 1992. This is a one or two level phenomenon. In other words, it cannot move 15 vertebral levels superiorly to cause damage to the cervical spine. Additionally, the nerves that exit the dorsal root of lumbar discs travel caudally (downward) and therefore do not influence spinal components above the level of exit. In other words, damaged lumbar nerves exert no affect on sensation, movement, or other neurologic components of the cervical spine. Therefore, it is less likely than not (<50% probability) that the Veteran's cervical degeneration/spondylosis is secondary to his service-connected nucleus pulposis [sic] of L5-S1. As stated by the previous examiner, the cervical spine condition is due to other causes, most likely disc degeneration which occurs from natural age progression. While well discussed and explained as to the issue of causation, this opinion, like the one previously deemed inadequate by the Board, speaks nothing of aggravation. Thus, it wholly is not adequate for purposes of assessing secondary service connection. See ibid. In such an instance, the Veteran has not been afforded substantial compliance with the prior directives, requiring remand for an aggravation opinion. See Stegall, 11 Vet. App. at 271. Second, there is indication that the Veteran's entire medical history is not before the Board. In a claim for disability compensation, VA will make efforts to obtain the claimant's service medical records, if relevant to the claim; other relevant records pertaining to the claimant's active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. The claimant must provide enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. 38 C.F.R. § 3.159(c)(3). This provision "extends the VA's duty to assist to obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance." Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). If, after continued efforts to obtain federal records, VA concludes that it reasonably is certain the records do not exist or further efforts to obtain them would be futile, then it will provide the claimant with oral or written notice of that fact. VA will make a record of any oral notice conveyed to the claimant. That notice must contain the identity of the records that VA could not obtain; an explanation of VA's efforts; a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and notice that the claimant is ultimately responsible for providing the evidence.38 C.F.R. § 3.159(e). In a February 13, 2013, VA Form 21-4138, the Veteran stated that he "first [was] treated for [his] secondary condition neck issues [at a] . . . Ohio VA hospital between 19861987"; he claims he was seen by "Dr. Weinerman." He further alleges that he was given a "home traction device for neck pain [and] stiffness." Since that time, his "condition has deteriorated." A review of the claims file shows no such VAMC Ohio records from 19861987 or any attempts from VA to obtain them. As such, VA has not fulfilled its duty to assist the Veteran, requiring remand. See Sullivan, 815 F.3d at 793; 38 C.F.R. § 3.159(c)(3). 3. Prior to September 7, 2018, entitlement to TDIU is remanded. Because the rating of the Veteran's low-back disability still must be adjudicated, this issue is inextricably intertwined, requiring remand. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Afford the Veteran the opportunity to attend an examination to assess the nature and severity of his low-back disability. The examiner must ensure that all proper testing is performed, including joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should estimate functional loss based on the Veteran's descriptions of his additional loss of function during flare-ups, gleaned from his medical records, or discerned from other sources available to the examiner. If feasible, functional loss due to flare-ups should be expressed in terms of the degree of additional range-of-motion lost. If the examiner cannot express functional loss in this manner without resorting to speculation, then the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. Neurological testing, if necessary, also should be performed. 2. Obtain any outstanding Ohio VA treatment records including, but not limited to, those in or around 1986 for a cervical spine disability. If, after continued efforts to those records, VA concludes that it reasonably is certain they do not exist or further efforts to obtain them would be futile, then notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. After the above record development has been completed, obtain an addendum to the August 2020 VA opinion. The addendum shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's service-connected low back disability aggravated beyond natural progression his cervical spine disability? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. Conduct any other development deemed necessary and then readjudicate the Veteran's claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.