Citation Nr: 21074091 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 11-31 751A DATE: December 14, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent for multi-level lumbar spine degenerative change of disk bulges with small herniation at L2 and disk extrusion at L4-5 facet arthropathy and central canal stenosis prior to February 26, 2020, is remanded. Entitlement to an initial evaluation in excess of 20 percent for multi-level lumbar spine degenerative change of disk bulges with small herniation at L2 and disk extrusion at L4-5 facet arthropathy and central canal stenosis on or after February 26, 2020, is remanded. Entitlement to an evaluation in excess of 20 percent for deformity and shortening with closed fracture of the proximal right femur and osteoarthrosis of the right hip with joint space narrowing and mild osteophyte formation is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1970 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded the case in September 2015, July 2017, July 2019, and September 2020 for further development. The case has since been returned for appellate review. During the pendency of the appeal, in a June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for the Veteran's service-connected lumbar spine disability to 20 percent effective February 26, 2020. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6Vet. App.35 (1993). Thus, the issue remains on appeal Upon review, the Board finds that additional development needed prior to adjudication of the issues on appeal. In September 2020, the Board remanded the issue of entitlement to an increased for the Veteran's lumbar spine disability, in part, to ensure compliance with Correia v. McDonald, 28 Vet. App. 158 (2016); Stegall v. West, 11 Vet. App. 268, 271 (1998). Thereafter, in June 2021, the Veteran was afforded a VA examination in connection with his claim. The examiner stated that he was unable to perform range of motion testing because the Veteran was confined to a wheelchair and unable to get out of it. The United States Court of Appeals for Veterans Claims recently held in Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. April 16, 2021) that ratings for ankylosis may be assigned for the functional equivalent thereof. In this case, the June 2021 VA examiner found that the Veteran did not have ankylosis. However, his confinement to a wheelchair and inability to perform range of motion raises the question of whether he may have the functional equivalent of favorable or unfavorable ankylosis of the thoracolumbar spine. Therefore, the Board finds that an additional VA examination and medical opinion are needed. Moreover, with regard to the Veteran's service-connected right femur disability, the Board notes that, during the pendency of the appeal ,VA amended some of its criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Notably, the Veteran is currently evaluated under Diagnostic Code 5255, which was amended. Therefore, the Board finds that the Veteran should be notified of the revised rating criteria and provided a VA examination that addresses all pertinent criteria. The matters are REMANDED for the following action: 1. The AOJ should request the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his service-connected lumbar spine and right femur disabilities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate the records with the claims file. The AOJ should also obtain any outstanding VA medical record. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected lumbar spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including any treatment records and assertions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's lumbar spine disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the lumbar spine. In so doing, he or she should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain that finding in the report. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors or flare-ups (including any additional loss of motion). If it is determined that range of motion testing cannot be performed, as indicated by the June 2021 VA examiner, the examiner should address whether the Veteran has ankylosis or the functional equivalent of ankylosis. If so, he or she should indicate whether any ankylosis is favorable or unfavorable, and to the extent possible, the date of onset. In rendering this opinion, the examiner should also consider the treatment records and provide an explanation for his or her findings. See e.g. VA treatment records documenting the Veteran as walking in 2019 and 2020. The examiner should also state the total duration of incapacitating episodes over the past 12 months, and identify all neurological manifestations of the disability. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected right femur and hip disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner should provide the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the right and left hips, thighs, and knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not feasible in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors and flare-ups (including any additional loss of motion). The examiner should also address whether the Veteran has ankylosis of the right hip or knee or the functional thereof. The examiner should further state whether the Veteran has malunion of the right femur with marked knee or hip disability; a fracture of the surgical neck of the femur with false joint; a fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, and with weightbearing preserved with aid of brace; or a fracture of the shaft or anatomical neck of the femur with nonunion with loose motion (spiral or oblique fracture). The examiner should further state whether the Veteran has a flail hip joint. In addition, the examiner should address whether the Veteran has recurrent subluxation or instability in his right knee or patellar instability. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability is viewed in relation to its history," copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The AOJ should ensure compliance with the prior directives and conduct any other development as may be indicated. 5. Thereafter, the AOJ should consider all of the evidence of record, including any evidence received since the SOC, and readjudicate the issues on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a SSOC, which includes consideration of the revised rating criteria effective February 7, 2021, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.