Citation Nr: 21066740 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-41 250 DATE: November 2, 2021 ORDER Entitlement to an effective date prior to June 19, 2014 for the award of service connection for lumbosacral strain with multilevel degenerative disc disease and L5-S1 spondylolisthesis and surgical fusion (hereinafter referred to as "lumbar spine disability") is denied. REMANDED Entitlement to an initial disability rating in excess of 40 percent for a lumbar spine disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed September 2006 rating decision that denied the Veteran's original claim for service connection for a lumbar spine disability is final. 2. No claim to reopen a claim for service connection for a lumbar spine disability was received until June 19, 2014. CONCLUSION OF LAW The criteria for an effective date prior to June 19, 2014 for the award of service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 5110, 7105(d); 38 C.F.R. §§ 3.156, 3.400. REFERRED CLAIM During the March 2021 hearing before the Board of Veterans' Appeals (Board), the Veteran's representative argued that his June 2014 claim application encompassed claims for service connection for both lumbar spine and cervical spine disabilities, since the Veteran filed a claim for "degenerative disc disease" and medical evidence available at the time showed that the Veteran had degeneration in both his lumbar and cervical spine. The Veteran's representative also argued that the Veteran's cervical spine disability may be related to his service-connected lumbar spine disability. This matter has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board does not have jurisdiction of this claim and it is therefore REFERRED to the AOJ for appropriate action. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from October 1986 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) and 38 U.S.C. § 7107(b). The Board observes that the Veteran has submitted additional medical records since the RO's adjudication in a July 2017 Statement of the Case, without a waiver of initial RO consideration. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to an effective date prior to June 19, 2014 for the award of service connection for a lumbar spine disability The statutory guidelines for the determination of an effective date for an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). A claimant or his representative must file a Notice of Disagreement (NOD) with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.301(a). A NOD must be filed with the VA office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable VA records have been transferred to another VA office. 38 C.F.R. § 20.300. If a NOD is not filed within the one-year period, the RO decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. An untimely NOD deprives the Board of jurisdiction to consider the merits of the appeal. After a rating decision becomes final, an earlier effective date may be established only by a request for revision of that decision based on clear and unmistakable error (CUE). See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Free-standing earlier effective date claims that could be raised at any time are impermissible because such claims would vitiate decision finality. Id. In this matter, the Veteran asserts that he is entitled to an effective date prior to June 19, 2014 for the award of service connection for a lumbar spine disability. By way of procedural background, VA received the Veteran's original claim for service connection for a "back/spinal condition" in June 2006. In a September 2006 rating decision, the RO denied his claim, and the Veteran did not appeal or provide any new evidence within a year of notification of the rating decision; thus, the September 2006 rating decision became final. On June 19, 2014, VA received the Veteran's petition to reopen his claim for service connection for "degenerative disc disease." In a February 2015 rating decision, the RO granted service connection for a lumbar spine disability and assigned an initial rating of 40 percent, effective June 19, 2014. The Board finds that the Veteran is not entitled to earlier effective date for the award of service connection for his lumbar spine disability because the prior rating decision denying his claim became final, as he did not appeal or provide any new evidence within a year of notification of the September 2006 rating decision. Furthermore, the Veteran does not assert that the September 2006 rating decision contained CUE. Accordingly, the date on which VA received the Veteran's petition to reopen his service connection claim (June 19, 2014) is the earliest effective date allowed by law for the award of service connection for his lumbar spine disability. Entitlement to an effective date prior to June 19, 2014 for the award of service connection for a lumbar spine disability is therefore denied. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 40 percent for a lumbar spine disability is remanded. The Veteran asserts he is entitled to an initial disability rating in excess of 40 percent for his lumbar spine disability, to include on an extraschedular basis. The Board finds that additional development is necessary prior to appellate review of this claim. In February 2015, the Veteran was provided a VA examination to assess the nature and severity of his lumbar spine disability. The February 2015 VA examiner determined that, while the Veteran's initial range of motion (ROM) measurements did not conform to normal ROM, it was nonetheless normal for the Veteran for reasons other than his back condition. The examiner explained, "The veteran has an as-of-yet undiagnosed neurologic disease for the last 2 years affecting both arms and right leg that causes him to be weak and lacking in balance. He stands at a forward flexed posture with 30 degrees of flexion starting in the lumbar region and can[]not do rom testing because of instability." Notably, in an April 2015 VA primary care note, the provider quoted from a neurology note that stated, "Objectively, this patient is essentially unchanged as far as neurological examination over the past two years that I have been evaluating him. This suggests that his true neurologic pathology, which is believed to be chronic, inactive multilevel cervical and lumbar radiculopathies are a static, non-progressive condition and no other objectfiable (sic) laboratory testing shows other progressive or neurodegenerative condition." The VA treatment provider ultimately assessed the Veteran with chronic polyradiculopathy, writing, "Per last neurology note, status is stable and this is unlikely to be a progressive neur[o]logic disorder, which is good." However, in a July 2016 private treatment record, the provider wrote, "[The Veteran] is presenting with a very complicated pattern of motor weakness, with severe proximal upper extremity lower motor neuron pattern of weakness, but some upper motor neuron pattern of lower extremity weakness. My first thought would be about this being related to an upper cervical myelopathy. However, a motor neuron disease should also be considered in the differential. A myopathic disorder could also be considered, as could a polyradiculoneuropathy. My thoughts would be to gather his medical records from the Minneapolis VA Medical Center as a starting point. After that, we would need to consider imaging of his brain and spinal cord, along with EMG studies and laboratory investigations appropriately directed..." Based on this conflicting evidence, the Board requires further clarification as to whether the Veteran's current symptoms and functional impairments are attributable to a progressive neurological disorder or to his lumbar spine disability. Additionally, while the February 2015 VA examiner opined that pain, weakness, fatigability, and incoordination could significantly limit the Veteran's functional ability during flare-ups or when the joint is used repeatedly over a period of time, she did not estimate the degrees of additional ROM loss, explaining that such an opinion was not feasible because the Veteran was unable to replicate the estimated limitation at the time of examination. The Board finds the February 2015 VA examination inadequate in light of Sharp v. Shulkin, as the VA examiner failed to ascertain adequate information i.e., frequency, duration, characteristics, severity, or functional loss during flare ups and after repeated use over time by alternative means and then estimate the Veteran's range of motion due to flare ups and repeated use based on all evidence of record, including the Veteran's lay information. 29 Vet. App. 26, 36 (2017). The Board also finds the February 2015 VA examination to be inadequate under Correia v. McDonald, 28 Vet. App. 158, 166 (2016), as the VA examiner did not conduct joint testing for pain on active and passive motion, and in weight-bearing and non-weight-bearing. Therefore, a new VA examination must be provided, and a retrospective opinion should be obtained as to the severity of the Veteran's lumbar spine disability at the time of the February 2015 VA examination. Furthermore, there is evidence suggesting that the Veteran's disability may have worsened since the February 2015 VA examination. The Veteran denied any bladder or bowel incontinence at the February 2015 VA examination, but more recently, during the March 2021 Board hearing, he testified that he has had some episodes of bowel incontinence. Given the suggestion of possible worsening, a new examination is necessary. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to a TDIU is remanded. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a request for TDIU is part and parcel of an increased rating claim when raised by the record. Here, in a June 2021 private medical opinion, Dr. F.G., MD, opined that the Veteran "is rendered 100% unemployable and unable to seek and gain gainful employment by his spinal conditions." Based on the foregoing, the Board finds that the issue of unemployability has been raised by the record. On remand, the Veteran should be provided proper notice regarding the evidence and information necessary to substantiate a TDIU claim, and he should be given a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), for completion. Additionally, the Board finds that the issue of entitlement to a TDIU must be remanded as it is inextricably intertwined with the issue of entitlement to an initial disability rating in excess of 40 percent for the Veteran's lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Send the Veteran the appropriate notice as to how to substantiate a request for a TDIU. Also provide him with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the RO. 3. Obtain a retrospective VA medical opinion as to the severity of the Veteran's lumbar spine disability at the time of the February 2015 VA examination. Specifically, the examiner should attempt to render a retrospective opinion that identifies the ranges of motion of the Veteran's lumbar spine in active motion, passive motion, weightbearing, and non-weightbearing (including accounting for functional impairment due to pain) in February 2015. The VA examiner should also provide an opinion as to any additional degrees of limitation of motion during flare-ups and after repetitive use over time due to pain, weakness, excess fatigability, and/or incoordination. If it is not possible to provide such opinions or estimations without resorting to mere speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Provide the Veteran an additional VA examination, if possible, to determine the current severity of his lumbar spine disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to respond to the following: (a) Clarify whether the Veteran's symptoms and functional impairments are attributable to his service-connected lumbar spine disability or to a progressive neurological disorder. (b) Elicit from the Veteran all signs and symptoms of his lumbar spine disability. In doing so, obtain information from the Veteran (and the record) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. Also, indicate any and all associated orthopedic AND neurologic manifestations. (c) Full range of motion (ROM) testing must be performed where possible. The joint involved and the opposing joint should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). In addition to the above testing, the examiner should also address any ameliorative effects of medications the Veteran uses to treat his lumbar spine disability. 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. (d) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning. If the examiner determines that flare-ups cause variable reductions in ROM of the affected joints, he or she must use information obtained from the Veteran to estimate variations in reduced ROM in terms of degrees. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). (Continued on the next page) 5. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.