Citation Nr: 21070386 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 11-15 429 DATE: November 23, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent, prior to October 7, 2019 and 30 percent thereafter, for degenerative arthritis of the cervical spine with intervertebral disc syndrome and spinal stenosis status post discectomy is remanded. Entitlement to an initial rating in excess of 10 percent prior to October 7, 2019 and 20 percent thereafter, for degenerative arthritis of the lumbar spine with lumbosacral strain is remanded. Entitlement to a rating of 10 percent prior to October 7, 2019, for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1979 to December 1987. These matters were initially before the Board of Veterans' Appeals (Board) on appeal from March 2009, August 2016, and June 2020 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). An October 2020 Board decision found that a 20 percent disability rating was warranted for the Veteran's cervical spine disability prior to October 7, 2019 and denied a rating in excess of 30 percent thereafter. The Board granted an initial rating of 30 percent for the left upper extremity radiculopathy from August 3, 2004. The Board granted a separate 20 percent rating for right upper extremity radiculopathy from July 18, 2002 to August 12, 2013. The Board denied an initial rating in excess of 10 percent prior to October 7, 2019 and 20 percent thereafter, for the Veteran's lumbar spine disability. The Board granted an initial rating of 10 percent for right lower extremity radiculopathy from July 18, 2002. Lastly, the Board denied an initial rating in excess of 10 percent for left lower extremity radiculopathy prior to and after October 7, 2019. The Veteran appealed the October 2020 decision to the United States Court of Appeals for Veterans Claims (Court or CAVC) which resulted in a Joint Motion for Partial Remand (JMPR). A July 2021 Court Order remanded the issues of entitlement to an initial rating in excess of 20 percent prior to October 7, 2019 and 30 percent thereafter, for degenerative arthritis of the cervical spine with intervertebral disc syndrome and spinal stenosis status post discectomy; entitlement to an initial rating in excess of 10 percent prior to October 7, 2019 and 20 percent thereafter, for degenerative arthritis of the lumbar spine with lumbosacral strain; and entitlement to a rating of 10 percent prior to October 7, 2019, for left lower extremity radiculopathy for action consistent with the terms of the JMPR. The Veteran testified before a Veterans Law Judge in January 2017. A transcript is of record. In a July 2021 Board letter, the Veteran was notified that the Veterans Law Judge who conducted the hearing in January 2017 was no longer employed by the Board. The Veteran was given the opportunity to request another hearing and was notified that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. In October 2021, the Veteran expressed that he did not wish to appear at another Board hearing. 1. Entitlement to an initial rating in excess of 20 percent, prior to October 7, 2019 and 30 percent thereafter, for degenerative arthritis of the cervical spine with intervertebral disc syndrome and spinal stenosis status post discectomy is remanded. 2. Entitlement to an initial rating in excess of 10 percent prior to October 7, 2019 and 20 percent thereafter, for degenerative arthritis of the lumbar spine with lumbosacral strain is remanded. With regards to the Veteran's cervical spine and lumbosacral spine disabilities, the parties agreed that a remand is required because the May 2017 and October 2019 VA examinations are inadequate for rating purposes and the Board erred by not ensuring compliance with previous Board remands from April 2017 and August 2018, as required by Stegall v. West, 11 Vet. App. 269, 271 (1998.) It was noted that this case was initially before the Board in April 2017 and August 2018 and each time was remanded for further development. In April 2017, the Board remanded for new cervical spine and lumbar spine examinations after the Veteran indicated during hearing testimony that he suffered from flare-ups that had not been contemplated in his previous examinations. The Board also found that the evidence indicated that the Veteran's disability had "worsened in severity," warranting a new medical examination on remand. The JMPR noted that the Veteran received new examinations of the cervical and lumbar spine in May 2017. However, in each examination the examiner noted that the examination was not being conducted during a flare-up, and that the examiner was unable to replicate range of motion, and the examiner was unable to say whether pain, weakness, fatigability or incoordination significantly limits functional ability with flare-ups. Thereafter, in August 2018, the Board remanded for further examinations after finding the VA examiner failed to elicit information from the Veteran regarding the severity, frequency, and duration of functional loss experienced during flare-ups. In October 2019 the Veteran received additional examinations for his cervical and lumbar spine. In each examination, the examiner stated that the "Veteran denies flare-ups." It was noted that the Veteran thereafter submitted an August 2020 statement reporting that the VA examiner did not ask him about flare-ups. The JMPR found that the May 2017 VA examination reports at issue do not indicate that the examiner attempted to elicit the information required under Sharp v. Shulkin. In addition, the JMPR found that new examinations are required because in the October 2019 VA examinations, the examiner stated the "Veteran denies flare-ups," however, the Veteran reported flare-ups of his neck and back during his 2004, 2008, 2016, and 2017 VA examinations for those conditions. It was also noted that the Veteran's medical records also indicate that he has consistently complained of flare-ups in years 1995, 2001, 2002, 2003, and 2005. Furthermore, the JMPR noted that the Veteran submitted an August 2020 statement further discussing his flare-ups and reporting that the VA examiner did not ask him about flare-ups. Thus, on remand, the Veteran should be provided a VA examination for his cervical and lumbar spine. 3. Entitlement to a rating of 10 percent prior to October 7, 2019, for left lower extremity radiculopathy is remanded. With regards to the Veteran's left lower extremity radiculopathy, the parties found that a remand of the Veteran's claim for a rating of 10 percent prior to October 7, 2019, for left lower extremity radiculopathy is required because the Board failed to provide an adequate statement of reasons or bases for its decision. Here, the Veteran was granted service connection for radiculopathy of the left lower extremity in a June 2020 rating decision with an initial 10 percent evaluation assigned from October 7, 2019. In its October 2020 decision, the Board determined that a higher rating was not appropriate, nor was an earlier effective date for the award of a separate rating. The Board stated that the Veteran's "first complaint of neurological impairment affecting the left lower extremity dates from the October 2019 VA examination." However, the Veteran's medical records indicate that in 2013 the Veteran complained of numbness, tingling and pain to the bilateral extremities. See December 2013 private treatment record. Thus, the parties found that a remand is required for the Board to review these medical records with regard to the Veteran's claim for a rating of 10 percent prior to October 7, 2019, for left lower extremity radiculopathy. As the Board is remanding the Veteran's lumbar spine disability in order to obtain a retrospective opinion regarding the severity of the Veteran's lumbar spine condition, the Board finds that a retrospective opinion should be obtained as to whether the Veteran's left lower extremity radiculopathy was mild, moderate, moderately severe, or severe in nature prior to October 7, 2019. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for VA examinations and retrospective opinions, conducted by an examiner with sufficient expertise to determine the past and current severity of the Veteran's cervical spine disability, lumbar spine disability, and left lower extremity radiculopathy. The claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner is asked to express current and retrospective opinions on functional loss during flare-ups or with repeated use over time for the cervical and lumbar spine, considering symptoms such as pain, weakness, and fatigability or incoordination. In doing so, the examiner should assess any additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. The examiner is asked to elicit relevant information as to Veteran's past and current flare-ups, to include but not limited to asking the Veteran to describe the additional functional loss, if any, he suffered, and suffers during flares and then either (1) estimate the past and current functional loss due to flares based on all the evidence of record including lay information, or (2) explain why he or she cannot do so. Should the examiner determine that an estimate of functional impairment cannot be given, the examiner must also clearly state whether they reviewed the record and attempted to elicit functional impairment information from the Veteran. The examinations must provide findings as to the range of motion of the lumbar spine and cervical spine, tested for pain on both active and passive motion, in weight-bearing and non-weight bearing, and indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. The examiner should report (in degrees) the point at which pain is objectively recorded. In doing so, the examiner should (1) offer an opinion as to whether pain could significantly limit functional ability during past, as well as current flare-ups or when the lumbar and cervical spine reused repeatedly over a period of time and (2) discuss the past and present effects of the lumbar spine and cervical spine disabilities on any occupational functioning and activities of daily living. Such determinations should, if feasible, be portrayed in terms of degree of additional range-of-motion loss due to pain on use or during past, as well as current flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding past or current flare-ups, symptoms, or functional impairment 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). To the extent possible, the examiner should render a current and retrospective opinion regarding the severity of all manifestations of the Veteran's left lower extremity radiculopathy prior to October 7, 2019 and thereafter. In this regard, the examiner should also identify the specific nerve(s) involved and indicate the degree of paralysis (i.e. complete paralysis or mild, moderate, or severe incomplete paralysis) in the affected nerve(s) prior to October 7, 2019 and thereafter. In rendering the above-requested opinion, the examiner should consider all pertinent evidence, to include but not limited to the referenced clinical records reflecting the presence of radiculopathy affecting the bilateral lower extremities prior to October 7, 2019. See December 2013 private treatment record. (Continued on the next page) If any of the requested opinions cannot be provided without resorting to speculation, the examiner should explain why an opinion cannot be provided without resort to speculation and whether the inability is due to the limits of the examiner's medical knowledge; the limits of medical knowledge in general; or there is evidence, which if obtained, would permit the necessary opinion to be provided. A complete rationale for all opinions should be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.