Citation Nr: 21071474 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-18 751 DATE: November 30, 2021 REMANDED Entitlement to a 20 percent rating for service-connected lumbar strain with degenerative disc disease and stenosis (low back disability), prior to October 22, 2018, exclusive of the period dated from November 19, 2014, to January 31, 2015, during which a temporary 100 percent rating under 38 C.F.R. § 4.30 was in effect, and a rating in excess of 40 percent since. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to March 29, 2021. REASONS FOR REMAND The Veteran served on active duty from February 1968 to March 1970. A video-conference hearing was held before the undersigned Veterans Law Judge (VLJ) of the Department of Veteran's Affairs (VA) Board of Veterans' Appeals (Board) in August 2018. A transcript of the hearing has been associated with the claims file. Most recently, in February 2021, the Board remanded the issues to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. The development directed by the Board in its February 2021 remand included mailing a copy of the July 2020 Supplemental Statement of the Case (SSOC) to the Veteran's representative of record. The Board considered that by a September 2011 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, the Veteran was represented by the California Department of Veterans Affairs and that by a June 2020 VA Form 21-22a, Appointment of an Individual as Claimant's Representative, he elected to be represented by an individual representative; the RO had mailed the July 2020 SSOC and August 2020 letter notifying the Veteran that his case had been returned to the Board to the California Department of Veterans Affairs. However, the June 2020 VA Form 21-22a was unsigned; the RO, in a July 2020 letter, informed the Veteran that the appointment could thus not be processed. To date, the Veteran has not responded. As such, the September 2011 VA Form 21-22 in favor of the California Department of Veterans Affairs remains in effect as it has not been revoked and further development to comply with the Board's February 2021 remand directive in this regard is not required. 1. Entitlement to a 20 percent rating for service-connected low back disability, prior to October 22, 2018, exclusive of the period dated from November 19, 2014, to January 31, 2015, during which a temporary 100 percent rating under 38 C.F.R. § 4.30 was in effect, and a rating in excess of 40 percent since. The Veteran has been examined by VA on a number of occasions during the course of the appeal. On examination in May 2010, the Veteran reported flare-ups, two-to-three each month, lasting one hour to one day or so, with pain rated as a ten on a ten-point pain scale, with stiffness and the inability to twist or move, aggravated by bending, pushing, pulling, and lifting. In the April 2013 DBQ, he reported flare-ups, asserting that any bending or lifting causes such with pain rated as a nine on a ten-point pain scale, lasting hours. The Board cannot explain why the Veteran denied flare-ups during the May 2015 DQB, while reporting that he had chronic pain since his recent surgery, reporting the use of an assistive device for the first time on VA examination, and while demonstrating less motion that he did at the April 2013 DBQ. In the October 2018 DBQ, he Veteran reported constant chronic low back pain, at its least when lying down and at its most when standing, with flare-ups, when standing, continuing as long as he stands. In the March 2021 DBQ, he denied flare-ups; the examiner reported that he questioned the Veteran closely about flare-ups or deviation of symptoms from baseline, and reported that the Veteran's reply was that he lived with the same type of pain every day, all of the time, and while some types of activities cause more pain than others, these are part of his daily routine. The United States Court of Appeals for Veterans Claims (Court) recently held in Chavis v. McDonough, 34 Vet. App. 1, 22-24 (2021), that application of 38 C.F.R. §§ 4.40 and 4.45 permits consideration under the General Rating Formula for Diseases and Injuries of the Spine of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis, in other words, if the demonstrated functional loss is the functional equivalent of ankylosis. Thus, the Veteran may be entitled to a rating in excess of 20 percent for his service-connected low back disability prior to October 22, 2018, or a rating in excess of 40 percent since, if his functional loss is consistent with ankylosis, specifically, if there is favorable ankylosis of the entire thoracolumbar spine warranting a 40 percent rating or unfavorable ankylosis of the entire thoracolumbar spine warranting a 50 percent or under the relevant criteria, respectively. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). In this regard, the March 2021 Disability Benefits Questionnaire (DBQ) is inadequate. As discussed above, Veteran and the examiner discussed flare-ups, which the Veteran denied. The examiner's explanation for such was helpful in understanding the Veteran's view, however, it does not provide the Board evidence upon which to rate his disability, specifically as the question of whether the Veteran experiences flare-ups and the limitation of his low back during such is paramount. Further, it appears that the examiner who conducted the March 2021 DBQ called into question the Veteran's credibility in demonstrating his low back range of motion. The Veteran's credibility on this issue has not been raised and he has appeared for a number of VA examinations and demonstrated similar symptoms and reported similar impairment. No other examination, while reporting that there was no ankylosis found present, including a discussion of whether the Veteran's functional loss was consistent with ankylosis. As such, the Board finds that another VA examination, with a different VA examiner, is warranted on remand in order to obtain clinical evidence, including a retrospective opinion, as to whether the Veteran's functional loss is consistent with ankylosis over the course of the appeal. The most recent VA treatment records available for Board review are dated in May 2021; on remand, the RO should obtain and associate with the claims file the Veteran's updated VA treatment records. 2. Entitlement to a TDIU prior to March 29, 2021. The issues of entitlement to an increased rating for a service-connected low back disability and entitlement to a TDIU are intertwined; the appropriate rating for the Veteran's service-connected low back disability is not determined and is the subject of the remand herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue). The issue of entitlement to a TDIU is thus not ripe for adjudication. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from May 2021 to the present. 2. Then, schedule the Veteran for an examination by an appropriate clinician other than the clinical who conducted the March 2021 DBQ to determine the current severity of his service-connected low back disability. (a) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (b) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). (c) 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 based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 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). (Continued on the following page) (d) The examiner must determine, with complete rationale, considering the results of the VA examinations conducted in May 2010, April 2013, May 2015, October 2018, and March 2021, and the Veteran's reports of functional limitation during flare-ups, as well as the Veteran's present clinical presentation, if his range of motion, considering all planes of motion, testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and considering functional loss due to factors such as pain, weakened movement, excess fatigability, and incoordination, during flare-ups and/or after repeated use over time related thereto, is consistent with that contemplated by ankylosis, specifically, favorable or unfavorable ankylosis of the entire thoracolumbar spine. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.