Citation Nr: 21063329 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 08-08 446 DATE: October 13, 2021 REMANDED Entitlement to a higher initial rating for degenerative joint and disc disease lumbar spine, rated as 40 percent disabling from May 4, 2007 to May 16, 2012, is remanded. Entitlement to a higher initial rating for degenerative joint and disc disease lumbar spine, currently rated as 20 percent disabling, from May 17, 2012, is remanded. Entitlement to a disability rating in excess of 10 percent for radiculopathy, right lower extremity, to include consideration of whether a rating is warranted for the period prior to April 27, 2021. Entitlement to a disability rating in excess of 10 percent for radiculopathy, left lower extremity, to include consideration of whether a rating is warranted for the period prior to April 27, 2021. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1973 to December 1975. These matters came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in February 2009 regarding his claim of service connection for a lumbar spine disability; the transcript is of record. In May 2016, the Board granted service connection for a low back disability. In a July 2016 rating decision, the RO implemented the Board's grant, assigning a 40 percent rating, effective May 4, 2007, and a 20 percent rating, effective October 15, 2009, to degenerative joint and disc disease, lumbar spine. In a May 2017 rating decision, the effective date of the 20 percent rating was corrected to May 17, 2012. In February 2018, the Board denied higher initial ratings for degenerative joint and disc disease, lumbar spine. The Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court). Per a September 2019 Joint Motion for Partial Remand (JMPR) and October 2019 Court Order, the Board's decision pertaining to the lumbar spine was vacated and remanded for action consistent with the JMPR. In May 2020 and November 2020, the lumbar spine issues were remanded for further development. In a May 2021 rating decision, separate 10 percent disability ratings were assigned to radiculopathy, left and right lower extremities, effective April 27, 2021. In a September 2021 rating decision, earlier effective dates for radiculopathy were denied. The Board finds that such ratings are part and parcel of the lumbar spine disability issue, thus the Board will address whether increased ratings are warranted. In an August 2021 submission, the Veteran's attorney raised the issue of entitlement to a TDIU. The Board will take jurisdiction of entitlement to a TDIU per Rice v. Shinseki, 22 Vet. App. 447 (2009). Lumbar spine and radiculopathy, bilateral lower extremities Per the May and November 2020 Board Remands, the Veteran was to be afforded an examination with a physician to assess the severity of his lumbar spine disability and was to be afforded a separate examination with a physician to assess any neurological manifestations, to include any radiculopathy or bowel or bladder symptoms. The examiner was also asked to identify any neurological findings in the lower extremities related to his lumbar spine disability throughout the pendency of the appeal since May 4, 2007. In April 2021, the Veteran underwent an examination pertaining to the lumbar spine with a nurse practitioner, not a physician. The examiner checked the 'No' box as to whether the Veteran has any other neurologic abnormalities or findings associated with the lumbar spine disability but commented that the Veteran reported accidents where he urinates on his underwear and stated it was not related to controlling his bladder and more of not being able to walk fast enough to make it to the restroom on time. He underwent a peripheral nerves examination with the same nurse practitioner, not a physician. The examiner indicated a diagnosis of sciatica/radiculopathy, bilateral lower extremities, on April 27, 2021, which corresponds to the date of the examination. The examiner commented that the diagnosis was made based on the Veteran's symptoms on the day of the examination. The examiner did not comment on any prior neurological findings or manifestations. The neurological examination does not contain any comment regarding bowel or bladder symptoms. Remand is necessary for the Veteran to be afforded examinations with a physician to assess the severity of his lumbar spine and radiculopathy, bilateral lower extremities, and for comment on any prior neurological findings or manifestations. TDIU The April 2021 nurse practitioner opined that the Veteran was unable to perform sedentary work. Per the August 2021 Appellate Brief, the Veteran is employed on a part-time basis as a substitute adult education teacher; however, he has reported that his low back disability interferes with his ability to work. The Veteran also asserts that his part-time employment does not constitute substantially gainful employment. The Veteran should be requested to complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Thereafter, the TDIU matter should be submitted to the Director, Compensation Service, for extraschedular consideration per § 4.16(b). The matters are REMANDED for the following actions: 1. Request that the Veteran complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability for his employment since May 4, 2007. 2. Associate updated VA treatment records for the period from April 29, 2021. 3. Schedule the Veteran for an orthopedic examination with a physician with appropriate expertise to assess the severity of his lumbar spine disability. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the spine should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner should also describe all neurologic manifestations, to include, but not limited to bowel or bladder impairment. The examiner is to provide a statement concerning how the lumbar spine disability affects functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations the Veteran would likely experience as a result of his lumbar spine disability. The examiner must provide a comprehensive rationale for the opinions. 4. Schedule the Veteran for a separate VA neurological examination with a physician with appropriate expertise to assess the nature of any neurological symptomatology associated with his lumbar spine, to include any radiculopathy or bowel or bladder symptoms. It is imperative that the claims file be made available to the examiner in connection with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should identify any neurological findings in the lower extremities related to the service-connected lumbar spine disability throughout the pendency of this appeal since May 4, 2007, and fully describe the extent and severity of those symptoms. The examiner should address the findings of neurological manifestations potentially attributable to his lumbar spine disability throughout the pendency of this appeal since May 4, 2007, to include consideration of the prior objective findings contained within the records and detailed above. The Board calls specific attention to the complaints of record of radiating pain to both knees, reported on examination in October 2009 and reports of radiating pain from the back down the right leg, as noted in an April 2012 neurologic examination. The examiner should identify any specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of the nerve (that is, whether it is mild, moderate, moderately severe, or severe in nature). The examiner should also identify any muscular atrophy. The examiner is to provide a statement concerning how any radiculopathy affects his functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations he would experience as a result of any radiculopathy. The examiner must provide a comprehensive rationale for the opinions. 5. For the period from May 4, 2007, refer the Veteran's claim for a TDIU per § 4.16 (b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities Raynaud's syndrome (20% 09/25/1978; 40% 06/14/2017); degenerative joint and disc disease, lumbar spine (40% 05/04/2007; 20% 05/17/2012); radiculopathy, left lower extremity (10% 04/27/2021); radiculopathy, right lower extremity (10% 04/27/2021) preclude the Veteran from participating in gainful employment. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.