Citation Nr: 21074229 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-00 827 DATE: December 14, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent prior to October 19, 2019, and in excess of 40 percent thereafter for service-connected lumbar spine degenerative disc disease (DDD), is remanded. Entitlement to a separate rating for erectile dysfunction as a neurological manifestation of lumbar spine DDD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected lumbar spine DDD is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from November 1965 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2004 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at a February 2017 hearing before a Veterans Law Judge that is no longer employed at the Board, a transcript of which has been attached to the record. The Board has advanced this case the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c). The Board previously remanded this matter to the AOJ for further development in June 2018, October 2020, and June 2021. These claims were initially appealed to the Board as arising from a December 2012 AOJ rating decision. However, in the October 2020 remand, the Board found that the Veteran's January 2006 correspondence constituted a valid appeal to the Board with hearing request and found that as such the September 2004 AOJ rating decision was not final. The Board also found that the Veteran's claim encompassed the issue of entitlement to a separate rating for erectile dysfunction as a possible neurological manifestation of his service-connected lumbar spine DDD. 1. Entitlement to a disability rating in excess of 10 percent prior to October 19, 2019, and in excess of 40 percent thereafter for service-connected lumbar spine DDD, is remanded. The Veteran was afforded an additional VA spine examination in July 2021. The examiner noted that the Veteran reported constant back pain causing difficulty standing and walking as well as constant use of a walker or wheelchair. Upon testing, the examiner recorded that the Veteran was observed immediately after repetitive use over time, but stated he was "unable to state without resort to mere speculation whether pain, weakness, fatigue or incoordination could significantly limit functional ability with repeated use over a period of time as I am only seeing him after three repetitions." Similarly, the examiner declined to speculate on the frequency or extent of the Veteran's flareups, as he was not examining the Veteran during a flareup. The Board has determined that the examiner's findings regarding repeated use over time are internally inconsistent, and that his findings regarding flareups are inadequate. There is also no indication that the examiner asked the Veteran to describe the changes in range of motion, if any, due to pain after repeated use over time or during flareups. As such, the examination is inadequate based on the requirements laid out in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), and remand for a new examination is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the Board observes that the Veteran was not afforded a VA spine examination between 2012 and 2019. As such, the examiner should also comment on the effect the Veteran's service-connected back disability has on his ability to secure or follow substantially gainful employment during this period. 2. Entitlement to a separate rating for erectile dysfunction as a neurological manifestation of lumbar spine DDD is remanded. An October 2020 VA examiner noted he did not have the expertise to opine as to the etiology of the Veterans' diagnosed erectile dysfunction. In July 2021, a VA psychiatrist MD noted that the Veteran reported the onset of erectile dysfunction after a 2003 fall while bowling. The examiner opined that the Veteran's erectile dysfunction was less likely than not due to his lumbar spine DDD, noting that the Veteran manifested several other medical conditions that could lead to erectile dysfunction, including diabetes, hyperlipidemia and hypertension. The Board finds this opinion inadequate, as the VA examiner acknowledged but did not address the Veteran's reports of continuous erectile dysfunction since a 2003 back injury while bowling. Unless the Board finds the lay statements not competent or not credible, an examiner's opinion must address the Veteran's relevant lay statements in order to include enough detail to inform the Board's decision. Failure to do so renders that opinion inadequate. Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020). As such, remand for an addendum opinion is required. 3. Entitlement to a TDIU as due to lumbar spine DDD is remanded. The development and decision on the remanded increased rating issue will significantly impact a decision on the issue of entitlement to a TDIU. As noted above, the VA examiner will also solicit information from the Veteran and provide an opinion as to the impact of his lumbar spine disability on his ability to find and maintain gainful employment from 2012 to 2019. Therefore, the issues are inextricably intertwined, and remand of entitlement to a TDIU is also required. See Harris v. Derwinski, 1 Vet. App.180 (1991). As this issue is being remanded, the Veteran will be afforded an additional opportunity to submit VA Forms 21-8940 and 21-4192, which are not currently part of the claims file. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or relevant private treatment records and associate them with the claims file. 2. Contact the Veteran and request he complete a Veterans' Application for Increased Compensation Based on Unemployability (VA Form 21-8940) as well as a Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192) and to include any other information necessary to adjudicate his claim of entitlement to a TDIU. 3. Schedule the Veteran for a VA examination with an appropriate clinician in order to determine the severity of his lumbar spine DDD. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or after repeated use over time, and if so, the examiner must estimate range of motion during flares or after repeated use over time. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or after repetitive use and provide the extent of motion loss described in terms of degrees. The examiner should also elicit from the Veteran the frequency, duration and severity of his flares and symptoms after repetitive use. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should also identify and evaluate any neurologic complications of the service-connected lumbar spine disability, to include erectile dysfunction. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's erectile dysfunction is due to his service-connected lumbar spine DDD. In formulating the requested opinion, the examiner is asked to address the lay statements of the Veteran, including his report of the onset of erectile dysfunction after a 2003 fall while bowling. The examiner is asked to state whether the Veteran's assertion of a nexus between the two is generally consistent with medical knowledge or implausible as well as whether his report of onset aligns with how erectile dysfunction is known to develop. Finally, the examiner should comment on the functional effect the Veteran's service-connected back disability has had on his ability to work during the period from January 2013 to October 2019, indicating what functions or types of employment consistent with his education and past employment experience would be precluded or remain feasible as a result of his lumbar spine DDD. A complete rationale should be provided for any opinion rendered. If a requested opinion cannot be rendered without resort to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the general state of medical knowledge, the facts of record, or the examiner's own knowledge or training. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, Associate Counsel 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.