Citation Nr: 21067545 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-07 521 DATE: November 4, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for the period from December 26, 2011 to June 28, 2015, and from December 1, 2015 to April 9, 2017; and in excess of 40 percent from April 10, 2017 through September 26, 2017, and from December 1, 2017 onward for lumbar spine intervertebral disc syndrome, spinal stenosis, lumbar strain, degenerative arthritis, and lumbar scoliosis is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy right lower extremity, femoral nerve, associated with lumbar spine intervertebral disc syndrome, spinal stenosis, lumbar strain, degenerative arthritis, and lumbar scoliosis is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy left lower extremity, femoral nerve, associated with lumbar spine intervertebral disc syndrome, spinal stenosis, lumbar strain, degenerative arthritis, and lumbar scoliosis is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy right lower extremity, sciatic nerve, associated with lumbar spine intervertebral disc syndrome, spinal stenosis, lumbar strain, degenerative arthritis, and lumbar scoliosis is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy right lower extremity, sciatic nerve, associated with lumbar spine intervertebral disc syndrome, spinal stenosis, lumbar strain, degenerative arthritis, and lumbar scoliosis is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Air Force from March 1970 to December 1973. These matters originate from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to a disability rating in excess of 20 percent for a lumbar spine disability now characterized as lumbar spine intervertebral disc syndrome, spinal stenosis, lumbar strain, degenerative arthritis, and lumbar scoliosis; and that denied entitlement to a disability rating in excess of 20 percent for radiculopathy of the bilateral lower extremities, now characterized as radiculopathy of the right and left sciatic nerves. These matters were previously before the Board of Veterans' Appeals (Board) in August 2020, at which time they were remanded for further development. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter of whether there has been substantial compliance with the Board's August 2020 remand directives is addressed below. A review of these claims' procedural history is necessary to clarify the scope of the claims currently on appeal. In this regard the Board notes that associated objective neurologic abnormalities associated with a spinal disability should be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, note 1. VA is obligated to liberally construe claims based on the reasonable expectations of a non-expert claimant and to determine all potential claims raised by the evidence. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (U.S. 2009). Accordingly, the Board concludes that the Veteran's claims as to his lumbar spine and bilateral sciatic nerve disabilities encompass claims for any other associated objective neurologic disabilities, to include new, separate ratings for lower extremity radiculopathies. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after 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 The Veteran filed a claim for increased ratings for his lumbar spine and bilateral sciatic nerve radiculopathy in December 2012, and these claims were denied in October 2013. The Veteran timely initiated an appeal of the October 2013 rating decision, seeking higher ratings for his lumbar spine disability and bilateral sciatic nerve radiculopathy. As reflected by a December 2015 statement of the case (SOC), during the pendency of the Veteran's appeal the RO acknowledged that the evidence at the time of the October 2013 rating decision warranted a grant of separate disability ratings for radiculopathy of the bilateral femoral nerves associated with the Veteran's lumbar spine disability; separate bilateral nerve ratings were granted in a December 2015 rating decision, effective the date of the December 2012 claim. The Veteran perfected his appeal by Form 9 in February 2016. This appeal was accepted as timely by VA. In his Form 9 the Veteran specifically identified his lumbar spine disability as an issue, as well as separately identifying appellate issues related to the four different ratings associated with his lower extremity radiculopathies (currently characterized as bilateral femoral and sciatic radiculopathy). During the pendency of the appeal the Veteran was granted temporary 100 percent ratings for his lumbar spine disability under 38 C.F.R. § 4.30 for the periods from June 29, 2015 to November 30, 2015, and from September 27, 2017 to November 30, 2017. No higher rating is available for his lumbar spine disability for these periods, and the Veteran's lumbar spine appeal is thus moot with respect to those periods. In a November 2020 rating decision, the RO granted the Veteran a 40 percent disability rating for his lumbar spine disability, effective April 10, 2017. As the highest possible rating has not been assigned for the periods on appeal, either prior to or following April 10, 2017, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). In light of the foregoing, the Board concludes that the issues currently on appeal before it are as follows: entitlement to a disability rating in excess of 20 percent for the period from December 26, 2011 to June 28, 2015, and from December 1, 2015 to April 9, 2017; and in excess of 40 percent from April 10, 2017 through September 26, 2017, and from December 1, 2017 onward for lumbar spine intervertebral disc syndrome, spinal stenosis, lumbar strain, degenerative arthritis, and lumbar scoliosis; entitlement to a disability rating in excess of 20 percent for radiculopathy right lower extremity, femoral nerve; entitlement to a disability rating in excess of 20 percent for radiculopathy left lower extremity, femoral nerve; entitlement to a disability rating in excess of 20 percent for radiculopathy right lower extremity, sciatic nerve; and entitlement to a disability rating in excess of 20 percent for radiculopathy right lower extremity, sciatic nerve. 1. Entitlement to a disability rating in excess of 20 percent for the period from December 26, 2011 to June 28, 2015, and from December 1, 2015 to April 9, 2017; and in excess of 40 percent from April 10, 2017 through September 26, 2017, and from December 1, 2017 onward for lumbar spine intervertebral disc syndrome, spinal stenosis, lumbar strain, degenerative arthritis, and lumbar scoliosis. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The Veteran's lumbar spine disability may be rated under either the General Rating Formula for Diseases and Injuries of the Spine or diagnostic code 5243 (intervertebral disc syndrome), whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a. Disability ratings in excess of 20 percent for a thoracolumbar spine disability require a showing of a limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Disability ratings in excess of 40 percent for a thoracolumbar spine disability require additional evidence regarding varying degrees of ankylosis of the spine. Id. A Veteran may be entitled to a higher evaluation where there is evidence that his or her disability causes additional functional lossi.e., "the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,] and endurance"including as due to pain. 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). Additionally, a higher evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45; see Mitchell, 25 Vet. App. at 37; DeLuca, 8 Vet. App. at 206-07. "Elevation of a veteran's musculoskeletal disability under either of these methods, colloquially known as the DeLuca factors, is based on additional functional loss with use or during flare-ups, which should, if feasible, be portrayed in terms of the degree of additional range-of-motion lost." see Lyles v. Shulkin, 29 Vet. App. 107, 118 (2017). Mere lack of occasion to observe the joint during a flare-up or after prolonged use is an insufficient basis for finding it speculative to respond. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). The Court of Appeals for Veterans Claims (CAVC) has held that applicable law permits consideration under the General Rating Formula of an evaluation based on ankylosis" if a claimant's functional loss is consistent with that contemplated by ankylosisin other words, if it is the functional equivalent of ankylosis." Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). The Veteran was afforded a VA examination in August 2013. At that time, he reported flare ups. However, no information regarding any functional limitations during flare ups was elicited, and the examination does not reflect any attempt to estimate any such additional functional loss in terms of range of motion. A June 2014 VA treatment note reflects a statement by the Veteran that he experienced flare ups once a week and would spend the day resting. In September 2014 a VA treating provider documented "very limited trunk flexion/extension" and "pain with rotation and extension bilaterally." In December 2015 and January 2016 VA treating providers characterized the Veteran as presenting with "significant" range of motion deficits. At an August 2016 VA examination the Veteran reported that on some days his lumbar spine disability rendered him unable to walk straight or bend; the Veteran was unable to complete range of motion testing and stated that due to his pain he was unable to bend forward, backward, sideways, or twist his back. The August 2016 VA examiner declined to provide range of motion estimates concerning functional loss during flare ups. In April 2017 a VA examiner documented forward flexion of 20 degrees and recorded that the examination was being conducted during a flare up. In June 2018 the Veteran reported to VA treating providers that he would squat to avoid bending. At an October 2020 VA examination the Veteran reported being unable to bend forward, twist, or turn at the waist during flare ups, and that he would need to kneel or squat to retrieve dropped items. The examiner described the Veteran as "unable to bend or twist" at the waist due to a spinal fusion surgery. The April 2017 and October 2020 VA examiners both documented no ankylosis of the spine. The Board finds that there are no Sharp compliant test results for the period prior to the April 2017 VA examination. Further, there is no examination or medical opinion pertaining to any point during the period on appeal addressing the question of whether the Veteran's lumbar spine disability manifests as the functional equivalent of ankylosis. In light of the Veteran's reports of inability to bend at the waist and needing to squat to retrieve dropped items; and VA treating providers' documentation of "very limited" range of motion and "significant" range of motion deficits, the Board concludes that a remand is required to obtain a VA medical opinion that directly addresses whether the Veteran's lumbar spine disability has manifested as functional limitations equivalent to ankylosis at any point during the period on appeal. Further, the medical opinion should attempt to express the effects of the Veteran's lumbar disability during flare ups in terms of range of motion. 2. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the bilateral femoral and sciatic nerves. The Board finds that there has not been substantial compliance with its August 2020 remand directives as they relate to the Veteran's radiculopathy claims. In August 2020 the Board directed that the Veteran be afforded a VA examination to evaluate the current nature and severity of the Veteran's femoral and sciatic radiculopathy. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. As discussed above, the Veteran's increased ratings claim for his lumbar spine disability encompasses any claim for associated objective neurologic abnormalities raised by the evidence. In October 2020 a VA examiner documented diagnoses of femoral, sciatic, and peroneal nerve radiculopathy. The examiner also recorded an additional diagnosis of "idiopathic peripheral neuropathy." In a later section of their report, the examiner recorded evaluations of radicular symptoms of the femoral and sciatic nerves, as well as the following additional nerves: bilateral external popliteal; bilateral musculocutaneous/superficial peroneal; bilateral anterior tibial/deep peroneal; bilateral internal popliteal; bilateral posterior tibial. The examiner offered no explanation for why only diagnoses of femoral, sciatic, and peroneal radiculopathy were recorded when examination findings pertinent to radiculopathy of several other lower extremity nerves were shown. Further, in the diagnosis section of their report, the examiner did not distinguish between radiculopathy of the anterior tibial/deep peroneal and the musculocutaneous/superficial peroneal nerves. The Board is also unable to determine what symptoms, if any, are attributable to the diagnosed idiopathic peripheral neuropathy", and the relationship, if any, of that diagnosis to the Veteran's lumbar spine disability. The Board notes that each of these nerves is identified in the rating schedule with its own diagnostic code. 38 C.F.R. § 4.124a. As discussed above, the Veteran's pending increased ratings claims encompass claims for separate ratings for any objective neurologic abnormalities associated with his lumbar spine disability. Accordingly, separate ratings for each nerve may be warranted if supported by the evidence. VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). It is therefore critical that a VA medical opinion be obtained that clearly identifies any and all applicable radiculopathy diagnoses associated with the Veteran's lumbar spine disability. Additionally, because evidence developed in the course of evaluating the Veteran's lumbar spine disability and any associated objective neurologic abnormalities could significantly impact a decision on the issue of an appropriate rating for his bilateral femoral and sciatic radiculopathy, the issues are inextricably intertwined, and a remand is required on these grounds alone. The matters are REMANDED for the following action: 1. Forward the claims file, including this remand, to the examiner who provided the October 2020 opinions relating to the Veteran's lumbar spine and bilateral sciatic and femoral radiculopathy. If the October 2020 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner's addendum opinion should address the following: (a.) Whether, at any point during the period on appeal, the Veteran's lumbar spine disability has manifested as functional limitations, to include limitations of range of motion resulting from painful motion, equivalent to ankylosis. (b.) Estimate the Veteran's functional loss in terms of additional loss of range of motion, if any, due to reported flare-ups and repeat use over time as required by 38 C.F.R. §§ 4.40, 4.45, as interpreted by CAVC in Sharp. Inform the examiner that the Sharp decision contemplated the absence of ideal clinical or laboratory conditions under which empirical observation might be made. Instead, all that is required is that an examiner consider the claimant's lay reports, the evidence of record, and the findings on examination and then make an estimate (even if speculative to an extent). The examiner is also free to state their level of confidence in the estimate given, on a scale of 1 to 5, with 5 being the most confident and 1 being the least; the examiner should also address range of motion during both active and passive motion and weight bearing and non-weight-bearing. (Continued on the next page) The examiner should also opine as to whether their Sharp and Correia compliant range of motion estimates can be applied retrospectively. If the new Sharp and Correia compliant estimates can be applied retrospectively, the examiner should specify how far back. If possible, the examiner should opine as to the Veteran's thoracolumbar spine range of motion for the period from December 2011 onward. (c.) Clearly identify all objective neurologic abnormalities, to include manifestations of radiculopathy, that are at least as likely as not attributable to, or associated with, the Veteran's lumbar spine disability. To the extent that radicular symptoms emanating from Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.