Citation Nr: 21072618 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 07-16 256 DATE: December 3, 2021 REMANDED Entitlement to an initial disability rating exceeding 20 percent for a thoracolumbar spine disability is remanded. Entitlement to a disability rating exceeding 40 percent for a thoracolumbar spine disability from April 28, 2009 through April 28, 2010 is remanded. Entitlement to a disability rating exceeding 20 percent for a thoracolumbar spine disability from April 29, 2010 through August 1, 2021 is remanded. Entitlement to a disability rating exceeding 40 percent for a thoracolumbar spine disability from August 2, 2021 is remanded. Entitlement to a compensable disability rating for radiculopathy of the left lower extremity prior to October 2, 2014 is remanded. Entitlement to a disability rating exceeding 10 percent for radiculopathy of the left lower extremity from October 2, 2014 is remanded. Entitlement to an initial disability rating exceeding 20 percent for radiculopathy of the right lower extremity is remanded. Entitlement to additional compensable ratings for neurological manifestations of a thoracolumbar spine disability (e.g. loss of bladder control) is remanded. Entitlement to TDIU prior to October 2, 2014 is remanded. Entitlement to Special Monthly Compensation (SMC) at the housebound rate under 38 C.F.R. § 3.350(i) prior to January 22, 2010 is remanded. Entitlement to Basic Eligibility to Dependents' Educational Assistance prior to January 22, 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 2004 through June 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in December 2011, September 2015, December 2016, and March 2018 for additional evidentiary development. In January 2021, the Board granted a partial increase in the disability rating for the thoracolumbar spine to 40 percent for the period from April 28, 2009 through April 28, 2010, and the Board denied the Veteran's claims for additional compensation for a thoracolumbar spine disability. The Board acknowledged the Veteran was pursuing additional ratings for separately compensable neurological manifestations, but the Board found the record did not support assigning separate compensable ratings and found that the issue of increased ratings for service-connected radiculopathy was not before the Board. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In September 2021, the CAVC granted a Joint Motion for Partial Remand (JMPR), vacating the Board's decision in part, and remanding these matters to the Board for action consistent with the JMPR. The JMPR found the Board's Reasons or Bases for its decision lacked adequate discussion of the evidence in support of assigning higher disability ratings based on (1) functional loss due to flare-ups including weakness, fatigability, incoordination, or pain on movement, and (2) associated objective neurological abnormalities associated with the Veteran's low back disability, including but not limited to, bowel or bladder impairment, as well as left lower extremity radiculopathy. Accordingly, the Board has recharacterized the issues on appeal to include claims for increased ratings based on associated radiculopathy and other neurological manifestations. While the Veteran's case was pending with the CAVC, VA conducted additional evidentiary development, and it obtained a September 2021 examination of the Veteran's thoracolumbar spine. In September 2021, VA issued another rating decision granting a partial increase to the disability ratings for the thoracolumbar spine. During the period on appeal, VA has also granted the Veteran entitlement to TDIU, Dependents' Educational Assistance, and SMC at the housebound rate under 38 C.F.R. § 3.350(i)(1) in association with her claims for increased ratings for the spine. See January 2017 Rating Decision; October 2015 Rating Decision. The Board has recharacterized the issues on appeal to reflect these awards. Specifically, the Board also recharacterized the issues to include claims for earlier effective dates for the TDIU, Dependents' Educational Assistance, and SMC awards as the Veteran raised the issue of entitlement to TDIU and ancillary benefits prior to the current effective dates. See, e.g., January 2007 Application for Increase Compensation Based on Unemployability; Payne v. Wilkie, 31 Vet. App. 373 (2019). After reviewing the claims file, the Board finds it is necessary to remand these matters to obtain outstanding records and additional medical opinion evidence from a clinician. The Veteran indicated in correspondence VA received in March 2018 and October 2021 that there are outstanding relevant records available from many sources including J.C. VA Community-Based Outpatient Clinic, K.C.H.C., H.P.M., and A.V.C.H.P.M. Clinic. VA should contact the Veteran and request her assistance in identifying and obtaining all outstanding relevant records before adding them to the claims file and submitting them to a clinician for review. VA should submit the complete claims file, including the additional records, to a clinician and obtain a retrospective opinion on the severity of the Veteran's service-connected thoracolumbar spine disability during the entire appeal period. To address the concerns in the JMPR, VA should ensure that a clinician addresses the totality of the evidence. Such evidence includes relevant additional records VA obtains on remand. The clinician should issue a retrospective opinion on the severity of the Veteran's thoracolumbar spine disability, to include during flare-ups and functional loss due to weakness, fatigability, incoordination, or pain on movement. The examiner's opinion should correct deficiencies in the prior opinions of record. For example, while the September 2021 examiner indicates the Veteran suffered from mild to moderate radiculopathy of the lower extremities, the opinion lacks a discussion of why the ratings are not severe with consideration of the Veteran's lay statements. For example, the claims file contains dozens of letters, including some that indicate the radiculopathy was so severe that the Veteran required a caregiver at times. See, e.g., October 2021 Statement in Support of Claim;April 2017 Correspondence from the Veteran. The Board REMANDS these matters for the following actions: 1. VA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records including (but not limited to) records from J.C. VA Community Based-Outpatient Clinic, K.C.H.C., H.P.M., and A.V.C.H.P.M. Clinic. VA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all outstanding relevant records with the claims file, VA should obtain an additional medical opinion from appropriate clinician to assist the Board in evaluating the severity of the Veteran's thoracolumbar spine disability over the course of the entire appeal period. VA should provide the clinician with a complete copy of the claims file and ensure the clinician addresses the following concerns: (a.) The clinician should identify all manifestations of the Veteran's service-connected thoracolumbar spine disabilities, to include functional limitations to range of motion as well and neurological manifestations (e.g. radiculopathy and loss of bladder control) throughout the entire period on appeal. (b.) The clinician should rate the severity of each manifestation and functional limitation based on a review of the claims file and an examination of the Veteran if the clinician determines an examination is necessary. The clinician should rate the severity of the Veteran's thoracolumbar spine disability, to include during flare-ups and functional loss due to weakness, fatigability, incoordination, and pain on movement throughout the entire appeal period. To the extent that the Veteran's disability picture has improved or worsened during the appeal period, the examiner should identify the time period of any worsening or improvement with citation to supporting evidence. The clinician should provide adequate rationale for the opinion with reference to the pertinent evidence including the Veteran's lay statements. For example, if the clinician opines the radiculopathy in an extremity is of moderate severity, the examiner should explain why it is not mild or severe. See 38 C.F.R. § 4.124a. The rationale for the opinion should include some discussion of the Veteran's accounts of each manifestation. For example, the claims file contains dozens of letters, including some that indicate the radiculopathy was so severe that the Veteran required a caregiver at times. See, e.g., October 2021 Statement in Support of Claim;April 2017 Correspondence from the Veteran. (c.) The record contains variable assessments regarding the range of motion in the Veteran's thoracolumbar spine, and the Board must consider the extent to which the Veteran's range of motion was limited during the entire appeal period, to include during severe flare-ups that may not have occurred on the day each measurement was taken. Therefore, the examiner should also opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran's forward flexion of the thoracolumbar spine was limited to a range of 30 degrees or less during periods of flare-ups, to include weakness, fatigability, incoordination, and pain on movement after repetitive use. See 38 C.F.R. § 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The examiner should also opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the range of motion during such flare-ups more nearly approximated a functional ankylosis of the thoracolumbar spine. See Chavis v. McDonough, 34 Vet. App. 1 (2021); 38 C.F.R. § 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. (d). If the clinician is unable to provide an opinion on these matters, the clinician must state whether the inability to render an opinion 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 clinician (does not have the knowledge or training). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.