Citation Nr: 21067502 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 10-16 326 DATE: November 4, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent prior to September 29, 2020, and in excess of 40 percent thereafter for the lumbar spine disability is remanded. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployment due to service-connected disabilities (TDIU) prior to October 3, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from April 1988 to August 1988 and from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in April 2021, when it was remanded to obtain a medical opinion. The procedural history also includes two Joint Motions for Remand granted by the United States Court of Appeals for Veterans Claims (Court), in December 2016 and March 2018, and previous Board remands in November 2013, February 2017, November 2018, and August 2020. The case has been returned to the Board at this time for further appellate review. A June 2020 rating decision granted a separate service connection award for radiculopathy of the left lower extremity associated with the lumbar spine disability, assigning a 10 percent rating with an effective date of November 6, 2019. While this rating decision was not appealed, the Board finds that the rating for service-connected radiculopathy is part and parcel of the claim for a higher disability rating for the service-connected lumbar spine disability. See 38 C.F.R. § 4.71a, General Rating for Diseases and Injuries of the Spine, Note 1. Therefore, the Board will consider the evaluation of the radiculopathy of the left lower extremity in conjunction with the evaluation of the lumbar spine disability that was appealed from the May 2009 rating decision noted above. 1. Entitlement to an evaluation in excess of 20 percent prior to September 29, 2020, and in excess of 40 percent thereafter for the lumbar spine disability is remanded. In the April 2021 remand, the Board requested a retrospective medical opinion in order to obtain information regarding the period prior to the November 2019 VA examination, as the examinations performed in April 2009 and April 2017 were deemed inadequate in the most recent JMR. VA requested the examiner respond to questions regarding the severity of the lumbar spine disability prior to November 2019 in comparison with the results reflected in the November 2019 examination. The retrospective opinion given by the June 2021 VA examiner is inadequate to help determine the severity of the lumbar spine disability prior to November 2019, for several reasons. Notably, the examiner did not discuss the disability picture as presented at the November 2019 VA examination. Further, the examiner stated that the record did not contain information relevant to the severity of the lumbar spine disability at various points in time, when the reason for the requested retrospective opinion was to provide such medical information, based on the Veteran's reports at the examination as well as complaints in the record. The examiner also did not discuss the reports regarding flare-ups at the January 2014 VA examination, which was only deemed inadequate as to contemporary measurements in active and passive motion, in weightbearing and non-weightbearing. Next, the examiner opined that the Veteran had numerous flare-ups over the decade prior to 2019 with pain comparable to the November 2019 examination, but stated elsewhere that there was no way to say whether there was a period with worse flare-ups than those noted at the November 2019 examination; the examiner did not explain why a conclusion could be formed about comparable severity but not about greater severity than the November 2019 examination. Finally, the examiner did not appear to elicit specific details from the Veteran regarding functional loss throughout the appeal period, stating only that the Veteran reported his low back "became really bad in 2009" or so. For these reasons, the June 2021 VA opinion is inadequate, and another remand is necessary to obtain a retrospective opinion. On remand, outstanding VA treatment records should be associated with the record, as the most recent VA treatment records indicate the Veteran was still awaiting a surgical consultation scheduled for July 2021. 2. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity is remanded. The radiculopathy issue is intertwined with the lumbar spine issue remanded above, and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to a TDIU prior to October 3, 2017, is remanded. The TDIU issue is also intertwined with the ratings remanded above. See Henderson, 12 Vet. App. at 20; Harris, 1 Vet. App. at 183. Specifically, although the RO denied TDIU prior to October 3, 2017, based on evidence that the Veteran was employed full-time until that date, the Board notes the work history provided by the Veteran in October 2020 indicates a period of six months missed from work between August 2015 and November 2016. This, and other extended absences, due to service-connected disability may qualify for periods of TDIU. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records since June 2021 from the Denver VA Medical Center, and/or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. 2. Forward the claims file to an appropriate clinician to provide a retroactive opinion regarding the severity of the Veteran's lumbar spine disability. If the examiner determines that an additional interview with the Veteran is required, one should be scheduled. Please note, an alternate format such as telehealth interview is acceptable. Following review of the claims file and, if indicated, interview of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the lumbar spine disability was MORE SEVERE than noted at the November 2019 VA examination during any period from September 2007 to November 2019. The examiner should, to the extent possible, specifically identify any such periods of increased severity and estimate the functional loss during these periods. The discussion of functional loss should include an estimated range of motion, if possible. The examiner should also, to the extent possible, identify periods of severity from September 2007 to November 2019 that are COMPARABLE to the results reflected at the November 2019 VA examination. In other words, the Board is asking for a retrospective opinion to help determine if the severity of the Veteran's disability prior to November 2019 was less severe, equally severe, or more severe than the symptoms reflected in the November 2019 examination report. In providing this retrospective history and opinion, the examiner MUST address the Veteran's lay statements in the record, including those found in examination reports, filings relevant to this claim, and medical treatment notes. The examiner should address any other pertinent evidence of record, including the November 2019 examination report. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.