Citation Nr: 21067420 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-20 295 DATE: November 4, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to July 9, 2019, and in excess of 40 percent therefrom for lumbar spine disability is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the U.S. Marine Corps from November 1995 to November 1999, and in the Navy from August 2000 to July 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in June 2020, the Board remanded the Veteran's claims. At the time of that remand the lumber spine issue was characterized as entitlement to a rating in excess of 20 percent prior to January 22, 2020, and in excess of 40 percent therefrom for lumbar spine disability is remanded. In an October 2020 rating decision VA made the Veteran's 40 percent rating effective July 9, 2019. As such, the issue has been recharacterized as entitlement to a rating in excess of 20 percent prior to July 9, 2019, and in excess of 40 percent therefrom for lumbar spine disability. Furthermore, in June 2021 the Veteran submitted a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability indicating the Veteran's belief that her service-connected disabilities, including her lumber spine disability, prevent her from securing or following any substantially gainful occupation. Given that, the issue of entitlement to a TDIU is part and parcel of the lumbar spine rating appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue of entitlement to a TDIU is now included as part of this appeal. 1. Entitlement to a rating in excess of 20 percent prior to July 9, 2019, and in excess of 40 percent therefrom for lumbar spine disability. The Veteran contends that her lumbar spine disability warrants higher ratings. As previously noted, she states that she suffers from extreme lower back pain necessitating her to go to emergency room, including in January 2020, and that her pain results in "zero range of motion." See Correspondence (January 2020). She stated that the January 2020 VA examination did not check for low back pain. See Correspondence (February 2020). She further stated that her low back pain has worsened and interferes with work, and that the January 2020 VA examination incorrectly provided that she was able to lift more than 50 pounds. See Correspondence (February 2020). In May 2020, she stated that she would be undergoing another injection for her low back pain in July 2020. See Correspondence (May 2020). In her June 2021 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, she reported being hospitalized for her back condition in November and December 2020 at the Surgery Center at Kissing Camels. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (June 2021). For the following reasons, the Board finds that remand is again necessary. 38 C.F.R. § 3.159 (c). First, the Board finds that remand is necessary to obtain outstanding treatment records. Initially, in her June 2021 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported being hospitalized for her back condition in November and December 2020 at the Surgery Center at Kissing Camels. Therefore, remand is necessary to afford the Veteran an opportunity to authorize release of these newly identified relevant records to VA. Further, VA treatment notes reflects that non-VA (outside) medical records were received from Spring Rehabilitation and scanned into the "VistA Imaging" system. However, the record does not include copies of those scanned records. Notwithstanding, VA's duty to assist requires VA to obtain all VA treatment records regardless their relevance to the claim. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019). Moreover, the constructive receipt doctrine applies to VA records, regardless of their relevance, if VA adjudicators have sufficient knowledge that such records exist. See Turner v. Shulkin, 29 Vet. App. 207, 218-19 (2018). Second, the Board finds that the medical record requires clarification, because the VA examination obtained in September 2020 subsequent to the June 2020 remand provides incomplete findings. First, range of motion findings with regard to flare-ups appear unclear in the September 2020 VA examination. To that extent, the examiner noted the Veteran's report of experiencing a "flare-up day" and back extension of 0 degrees with subjective reports of too much pain to extend. The examiner noted that, It is reasonable to estimate that on a worse flare-up day, or with repeated use over time, her back range of motion would be as follows: forward flexion would be approximately 20 degrees, back extension would remain 0 degrees, right and left lateral flexion would be approximately 5 degrees each, and right and left lateral rotation would be approximately10 degrees each Id. The examiner further provided that the Veteran's range of motion would be further limited but noted her inability "to observe at the time of this exam, her potential reported "zero range of motion, as noted in previous medical records." Id. The examiner discussed that "persons with chronic back pain may experience what is medically defined as 'intractable' back pain" that results in a person's inability move at all. In terms of application of "intractable back pain" to this Veteran, the examiner stated that, If this veteran does experience episodes of intractable back pain, then during those episodes, her range of motion of her back would reasonably be approximately 0 degrees, due to an inability and indesire to move the back due to pain and spasm. Intractable back pain is an uncommon occurrence, but does occur. I do not find any specific treatment records in the veteran's VA e-folder referring to episodes of intractable back pain. This neither confirms nor denies the existence of such episodes, only that I do not have records as to such. Id. In this case, the September 2020 VA examination did not provide a conclusion with a reasoned medical explanation, because of its usage of terms such as "neither confirms nor denies." See 38 C.F.R. § 3.102 (reasonable doubt does not include resort to speculation or remote possibility); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (stating a medical examiner's use of ambivalent or noncommital phrases "should have signaled to the Board that the medical opinion was speculative and of little probative value"). Moreover, it is unclear why the examiner was unable to provide further limitations in range of motion, despite the Veteran's clear detailed explanations of such limitations, which the examiner specifically noted at the examination as "zero range of motion." It is also unclear what records the examiner saw as necessary for her to provide clear range of motion findings, given that the available record does include the Veteran's reports of range of motion during flare-ups. A VA medical examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). However, a VA examination is considered inadequate where the examiner fails to articulate "a reasoned explanation" of his conclusion that no opinion is possible without resort to mere speculation, as is the case here. The September 2020 VA examination appears to provide no explanation for its inability to provide range of motion estimates based on the Veteran's reports. Third, while the range of motion estimates for flare-ups as well as for repetitive use over time of the left hip included extension 0 to 0 degrees; forward flexion 0 to 20; right lateral rotation, left lateral rotation, right lateral flexion and left lateral flexion 0 to 10 degrees, no actual ankylosis was found on examination. Similarly, the Veteran was unable to bend and unable to drive for any extended period of time due to severe pain. Given the very limited range of motion findings, however, the Board finds that remand is necessary to obtain a medical opinion on whether the Veteran's lumbar spine is 'functionally ankylosed' including during flare-ups and/or upon repetitive use. Lastly, the Board notes that another VA examination was obtained in July 2021 mainly to evaluate the Veteran's claim for increased rating for right lower extremity radiculopathy. See C&P Exam (July 2021). That examination addressed the Veteran's lumbar spine disability as well and noted how it would interfere with a job. It also noted constant lower back pain, limited mobility, with severe pinching and tingling shooting pain down the right leg followed by numbness in right foot, all of which has been noted in her previous medical evaluations. Given the above, the Board may not rely upon the VA medical opinion in its present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to a TDIU. The outcome of the claim for increased rating for lumbar spine disability may impact the TDIU claim. Therefore, the issue of entitlement to a TDIU is inextricably intertwined with the issue of a higher rating for lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2021 to the Present. 2. Associate copies of all treatment records that have been scanned into the VistA Imaging system with the Veteran's claims folder. 3. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for her lumbar spine disability, to specifically include the Surgery Center at Kissing Camels. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 4. Thereafter, schedule the Veteran for an examination of the severity of her lumbosacral spine disability. The examiner should provide a full description of the disability examined and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Current Level of Impairment: (a.) Test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). It is not sufficient merely to incidcate whether or not pain was present during one of the required ROM tests. If any of these findings are not possible, please provide an explanation. (b.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement 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. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Note: If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced ROM during flares or repetitive use. (c.) Elicit from the Veteran her complete educational, vocational, and employment history and should note her complaints regarding the impact of her back disability on employment. The examiner should identify all limitations or functional impairment (physical and mental) caused solely by service-connected back disability. For TDIU purposes: (d.) Elicit from the Veteran her complete educational, vocational, and employment history. (e.) Ask the Veteran to describe, in her own words, the functional impact of her lumbar spine disability on her ability to perform the physical and mental acts required for substantially gainful work. The Veteran's response should be recorded in the examination report. (f.) Indicate the objective functional effects of the Veteran's lumbar spine disability on her ability to perform the physical acts (e.g., walking, sitting, standing, bending) and mental acts (e.g., concentration, focus, attention, and memory) required for employment. Past Level of Impairment: (g.) To the extent feasible, attempt to provide a retrospective assessment of the Veteran's range of motion during flare-ups and after repetitive use prior to July 9, 2019, based on past and current medical history, clinical findings, treatment records and the Veteran's lay reports. If the examiner is unable to provide a retrospective opinion, clearly explain why that is so. If it is not possible to provide an estimated measurement without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.