Citation Nr: 21067446 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-39 712 DATE: November 4, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for degenerative disc disease and degenerative joint disease of the lumbosacral spine prior to June 1, 2010, and in excess of 40 percent thereafter is remanded. Entitlement to a separate rating(s) for radiculopathy of the bilateral lower extremities associated with the lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 1, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1970 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Board notes that, in his October 2014 VA Form 9 (Substantive Appeal), the Veteran requested a Board hearing. He was scheduled to appear at a Board hearing in July 2017. However, he did not appear for such hearing. Thereafter, in June 2019, the Board denied entitlement to higher staged ratings for the lumbar spine disability and an effective date for TDIU prior to July 1, 2015. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted the parties' August 2020 Joint Motion for Remand (JMR), returning these issues to the Board for action consistent with the terms of the JMR. The Board remanded the case in May 2021 for action consistent with the terms of the JMR. The matter now returns for further appellate review. Unfortunately, remand is warranted for additional medical inquiry into the claims for entitlement to higher staged ratings for the lumbar spine disability and an effective date prior to July 1, 2015 for TDIU. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an Initial Rating in Excess of 20 Percent for Degenerative Disc Disease and Degenerative Joint Disease of the Lumbosacral Spine Prior to June 1, 2010, and in Excess of 40 Percent Thereafter is Remanded. The Veteran was afforded a VA spine examination in July 2021. The July 2021 VA examiner found that the Veteran does not have ankylosis. However, in contrast, the examiner noted the Veteran was unable to perform passive range of motion testing or repetitive use testing due to significant pain and stiffness in his back. The examiner further noted that functional loss on weightbearing included an inability to bend. It was further noted that the Veteran reported the regular use of an assistive device to pick-up items on the floor or in cabinets. In an August 2021 addendum retrospective opinion, the examiner noted that flare-ups are severe and the Veteran "has to go on bedrest" for at least one day with the flare-ups. The examiner added, "during flare-ups, functional loss causes an estimated loss of ROM in that the Veteran is bed ridden during the flare-up." As an initial matter, the examiner did not address whether the Veteran's symptoms resulted in the functional equivalent of ankylosis during a flare-up. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (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). Secondly, it is unclear whether the Veteran's bedrest had been prescribed by a physician. Therefore, a remand for an addendum opinion is required. Entitlement to a Separate Rating(s) for Radiculopathy of the Bilateral Lower Extremities Associated with the Lumbar Spine Disability is Remanded. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provides for evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. The evidence is unclear as to whether the Veteran has radiculopathy of his lower extremities associated with the lumbar spine disability. Although the July 2021 VA spine examination indicated the Veteran did not have radiculopathy, the evidence of record includes a January 2011 VA spine examination noting a history of paresthesias in the entire right leg and in the left leg; and, a January 2021 VA treatment record indicating the Veteran's significant other problems include low back pain with some radicular symptoms on the right. As such, the Board finds that the Veteran should be afforded a neurological examination to assist in determining the nature and severity of any diagnosed radiculopathy associated with the service-connected lumbar spine disability. 2. Entitlement to a TDIU Prior to July 1, 2015 is Remanded. The issue of entitlement to higher staged ratings for the lumbar spine disability and entitlement to a TDIU prior to July 1, 2015, are inextricably intertwined. The outcome of the issue of higher staged ratings for the lumbar spine disability may impact whether a TDIU is assignable on a schedular basis, prior to July 1, 2015. Thus, the issue is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (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. Return the record to the VA examiner who conducted the July 2021 VA examination and provided the August 2021 addendum retrospective opinion, if available. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner is requested to comment on the following: (a) whether the Veteran's diminished range of motion and associated functional impairment constitutes the functional equivalent of ankylosis; and, (b) if so, whether the Veteran demonstrates the functional equivalent of unfavorable ankylosis of (i) the entire thoracolumbar spine or (ii) the entire spine. Then, based upon a review of the prior VA spine examinations to include the March 2006, July 2008, January 2011, and June 2015 VA spine examinations, the examiner is also requested to provide a retrospective opinion on the following: (c) whether the Veteran's diminished range of motion and associated functional impairment constitutes the functional equivalent of ankylosis; and, (d) if so, whether the Veteran demonstrates the functional equivalent of unfavorable ankylosis of (i) the entire thoracolumbar spine or (ii) the entire spine. Then, the examiner is requested comment upon the following: (e) whether there is evidence of physician prescribed bedrest at any time during the appeal period; and, (f) if so, the total number of days per week over any 12-month period the Veteran was prescribed bedrest by a physician. Complete rationale for all opinions must be provided. The Veteran's lay statements must be considered as well as the pertinent evidence of record. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and he/she must provide the reasons why an opinion would require speculation. The examiner must indicate whether there is any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Then, afford the Veteran an appropriate VA examination to assist in determining the nature and severity of any lumbar spine radiculopathy. For each neurological manifestation diagnosed, the examiner must specifically identify the nerve that is involved and indicate whether there is complete paralysis. If incomplete paralysis is found, the examiner should indicate the severity of the symptoms. The examiner must address the January 2011 VA spine examination noting a history of paresthesias in the entire right leg and in the left leg; and, the January 2021 VA treatment record indicating radicular symptoms on the right. A complete rationale for all opinions must be provided. The Veteran's lay statements must be considered as well as the pertinent evidence of record. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and he/she must provide the reasons why an opinion would require speculation. The examiner must indicate whether there is any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After undertaking any additional development which may be deemed necessary, readjudicate the issues to include the issue of entitlement to a TDIU prior to July 1, 2015. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.