Citation Nr: 21067456 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-25 152 DATE: November 4, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for residuals of a fracture of the L2 vertebra with chronic low back pain is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1978 to April 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in August 2018, at which point a rating in excess of 10 percent was denied. The Veteran appealed the Board's August 2018 denial to the United States Court of Appeals for Veterans Claims (Court). In June 2020 the Court issued a memorandum decision setting aside the Board's August 2018 decision and remanding the issue for further proceedings. In June 2021 the claim returned to the Board, at which point the Board remanded the claim to the RO for further medical development. Entitlement to a disability rating in excess of 10 percent for residuals of a fracture of the L2 vertebra with chronic low back pain is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Unfortunately, there has not been substantial compliance with the Board's June 2021 remand directives. In the Board's June 2021 decision, the Veteran's claim was remanded for a new VA examination. In remanding the claim, the Board directed the VA examiner to "estimate the lost motion or other functional loss that would be present absent the ameliorative effects of pain medication." The Veteran was afforded a new VA examination in July 2021. The examination report noted that the Veteran is treated with etodolac for pain, but there is no indication of whether etodolac was taken prior to the examination. Further, the examiner did not provide an estimate of range of motion or functional loss absent the ameliorative effects of pain medication as requested by the Board. (7/20/2021, C&P Exam, p. 2). As such, the Board finds that there has not been substantial compliance with the June 2021 remand directives, and therefore, the claim must be remanded for further medical development. Additionally, the Veteran's medical records indicate that she has complained of pain that radiates into the right leg. (6/17/2021, Correspondence, p. 219). However, the July 2021 examiner indicated that there were no signs or symptoms of radiculopathy. While the issue of radiculopathy was not remanded by the Board in the June 2021 decision, Note 1 to the General Rating Formula for Diseases and Injuries of the Spine directs VA to evaluate any associated neurologic abnormalities separately under an appropriate diagnostic code when evaluating a spine disability. See 38 C.F.R. § 4.71A. Therefore, when considering an increased rating for a spine disability, all associated neurologic abnormalities, including radiculopathy, are at issue as well. In failing to evaluate the Veteran's radiculopathy symptoms, the examiner failed to report all signs and symptoms necessary to evaluate the Veteran's disability under the rating criteria. Finally, the Veteran has reported flare-ups of back pain that results in her back locking up. (6/17/2021, Correspondence, p. 275). The Court recently held that the criteria for ankylosis as defined in the General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). In light of the Court's holding in Chavis, the Board finds that a medical opinion is needed regarding whether these episodes of locking pain result in the functional equivalent of ankylosis. Based on the aforementioned, the Board finds that the claim must be remanded for further medical development. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from May 2021 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected residuals of a L2 vertebra fracture with chronic low back pain. The examiner should provide a full description of the disability and report all signs and symptoms, including the symptoms of any associated neurologic abnormality, necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must 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 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. In providing the requested responses, the examiner MUST estimate the Veteran's lost motion or other functional loss that would be present absent the ameliorative effects of medication. The examiner MUST additionally address whether the Veteran's complaints of locking pain are the functional equivalent of ankylosis. In doing so, the examiner should address the following: (a.) Whether the Veteran's functional loss during an episode of locking pain is at least as likely as not the functional equivalent of ankylosis? (b.) If functional ankylosis is found, characterize whether it is favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. (c.) If functional ankylosis is found, identify the earliest evidence of functional ankylosis. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.