Citation Nr: 21066247 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-39 752A DATE: October 29, 2021 REMANDED Entitlement to an increased rating for herniated disc, lumbar spine, currently rated as 40 percent disabling, is remanded. Entitlement to an effective date earlier than June 16, 2016, for the increased rating of 40 percent for service-connected herniated disc, lumbar spine is remanded. Entitlement to an increased rating for degenerative disc disease, cervical spine, currently rated as 20 percent disabling and 10 percent disabling prior to June 26, 2019, is remanded. Entitlement to a higher initial rating for radiculopathy, middle radicular group, left upper extremity, currently rated as 30 percent disabling, is remanded. Entitlement to a higher initial rating for radiculopathy, sciatic nerve, left lower extremity, currently rated as 20 percent disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2008 to June 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran also appealed entitlement to an effective date earlier than June 16, 2016, for service connection for middle radicular group, left upper extremity. In a June 2019 decision, the Board denied entitlement to an earlier effective date for the grant of service connection for the left upper extremity middle radicular group. In a May 2020 Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (Court) noted that the Veteran did not appeal the Board's denial of an earlier effective date for service connection for the left upper extremity middle radicular group. Accordingly, this issue is not before the Board. This matter was previously before the Board in June 2019, wherein the Board remanded the issues for additional development. The matter has returned to the Board for adjudication. As an initial matter, a June 2017 VA treatment record indicates that the Veteran received chiropractic care on his own for back-related issues. Furthermore, the June 2019 VA neck and lower back examinations note that the Veteran saw a chiropractor in 2017. There has been no attempt by the RO to obtain these private treatment records. Consequently, a remand is warranted to obtain the Veteran's chiropractic records. 1. Entitlement to an increased rating for herniated disc, lumbar spine, currently rated as 40 percent disabling The Veteran contends that he is entitled to a higher rating than the current 40 percent rating. The Veteran was examined for his back in October 2016. He reported at the examination that he has flare-ups of the back where he cannot stand or sit for extended periods of time and has pain while walking, running, or twisting. Additionally, he stated he has functional loss or functional impairment in that he is unable to perform daily life functions that involve the back. Upon examination, the Veteran did not have ankylosis of the spine. The Veteran was most recently afforded a VA examination in June 2019 for his back disability. He noted that he does not have flare-ups but did state that he has functional loss or functional impairment of the lower back as he cannot sit and stand for prolonged periods, he cannot run at all, and he cannot fully bend forward. Here, the evidence suggests that the Veteran may experience the functional equivalent of ankylosis, and on remand the examiner should address whether the Veteran's symptoms resulted in the functional equivalent of ankylosis during a flare-up. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 at * 2 (Apr. 16, 2021(precedential panel decision) (holding that evidence of functional equivalent of ankylosis during a flare-up requires consideration of rating factors in 38 C.F.R. §§ 4.40 and 4.45.) 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 such, on remand, the VA examiner should 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. 2. Entitlement to an effective date earlier than June 16, 2016, for the increased rating of 40 percent for service-connected herniated disc, lumbar spine The Board finds that the claim for entitlement to an earlier effective date for the increased rating of 40 percent for the Veteran's lower spine disability is inextricably intertwined with the claim remanded above. Hence, this final issue is not yet ripe for appellate review and must be deferred pending re-adjudication of the remanded claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to an increased rating for degenerative disc disease, cervical spine, currently rated as 20 percent disabling and 10 percent disabling prior to June 26, 2019 During the period on appeal the Veteran's cervical spine disability was increased to 20 percent; however, as the Veteran has not been granted the maximum benefit allowed for his cervical spine disability 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 was afforded a VA examination in October 2016. The Veteran reported having flare-ups of the neck described as pain, tingling, numbness, and general aching. He indicated his range of motion is diminished. He also reported having functional loss or functional impairment of the cervical spine and cannot perform basic life functions without pain due to upper back issues. The VA examiner stated that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time and also stated that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with flare-ups. Based on these findings, the VA examiner did not provide the additional loss of range of motion for repeated use and flare-ups. However, as indicated at the examination, the Veteran had reported having flare-ups of the neck with additional loss of range of motion and that he cannot perform basic life functions without pain. 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. 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 October 2016 VA examiner did not comply with the requirements in Sharp, as it does not appear that 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 Board also notes that the Court issued a decision which mandated new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the cervical 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 weightbearing and non-weightbearing. Id.; see also 38 C.F.R. § 4.59. Unfortunately, review of the record evidence does not show that the October 2016 VA examination for his neck condition comply with Correia. There is no indication in the October 2016 examination as to whether the range of motion obtained at the examinations are in active motion, passive motion, weightbearing, and non-weightbearing. The Veteran was also examined for his neck disability in June 2019. He reported that he does not have flare-ups, but he does have functional loss or functional impairment as he has difficulty turning his head from side to side while driving and difficulty studying for prolonged periods. On repetitive-use testing, the Veteran was unable to perform the test as he had a fear of pain. A remand is warranted for the VA examiner to address whether the Veteran has upper back symptoms that are equivalent to ankylosis during a flare-up or with repeated use over time. As such, the VA examinations pertaining to the Veteran's neck condition may be inadequate and remand is required to obtain a retrospective medical opinion. 4. Entitlement to a higher initial rating for radiculopathy, middle radicular group, left upper extremity, currently rated as 30 percent disabling 5. Entitlement to a higher initial rating for radiculopathy, sciatic nerve, left lower extremity, currently rated as 20 percent disabling As noted above, the Veteran indicated he received treatment at a private chiropractic clinic in 2017. As the records may contain relevant information to the issues being remanded, the Board finds that the issues of entitlement to a higher rating for radiculopathy of the middle radicular group, left upper extremity and radiculopathy of the sciatic nerve, left lower extremity must be remanded so that the RO can obtain these records prior to issuing a decision on these claims. The matters are REMANDED for the following action: 1. Obtain VA treatment records from November 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records relevant to his claims on appeal, or in the alternative, provide a release so that VA can attempt to obtain these records. Specifically, the Veteran should either submit or provide a release for records from the private chiropractic clinic he received treatment at starting in 2017. All the action taken in this regard should be documented. 3. After completion of the above, obtain an addendum opinion from the VA examiner who provided the October 2016 examination for the service-connected lumbar spine disability (or if no longer available, an appropriate replacement) for the purpose of obtaining a retrospective opinion. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: The examiner is asked to provide a retrospective opinion concerning the functional loss and severity of the Veteran's thoracolumbar disability beginning from June 2015 (i.e., one year prior to the Veteran's increased rating claim received in June 2016). In this regard, the examiner must address whether the Veteran's reported symptoms represent unfavorable ankylosis of the thoracolumbar spine at any time during the appeal period. Please explain why or why not. The examiner must consider the Veteran's statements at the October 2016 and June 2019 VA examinations that he cannot stand or sit for extended periods of time and has pain while walking, running, or twisting. Additionally, he stated he has functional loss or functional impairment in that he is unable to perform daily life functions that involve the back, and he cannot fully bend forward. The examiner is requested to offer the opinion based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. 4. Obtain an addendum opinion from the VA examiner who provided the October 2016 examination for the service-connected cervical spine disability (or if no longer available, an appropriate replacement) for the purpose of obtaining a retrospective opinion. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Identify the: i. frequency; ii. duration; iii. precipitating factors; and iv. alleviating factors for the reported flare- ups of the neck. b) Based upon the information elicited as a result of the foregoing, to the extent possible, provide a retrospective opinion concerning the degrees of limited motion for the Veteran's cervical spine with active and passive range of motion in weightbearing and non-weightbearing conditions and that experienced with repeated use over time and during flare-ups as would have been present at the October 2016 VA examination. Specifically, it was noted at the October 2016 examination that the Veteran reported flare-ups of the neck with additional loss of range of motion and that he cannot perform basic life functions without pain. The opinion must include range of motion of both active and passive motion, and in weightbearing and non-weightbearing, if possible. c) The examiner must also address whether the Veteran's reported symptoms represent favorable or unfavorable ankylosis of the cervical spine at any time during the appeal period. Please explain why or why not. The examiner is requested to offer the opinions based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. The examiner must also consider the Veteran's statements at the June 2019 examination that he has difficulty turning his head from side to side while driving and difficulty studying for prolonged periods. 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. If the examiner cannot provide an opinion as to additional loss of motion on repeated use and/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. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. 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.