Citation Nr: 21074915 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 13-27 261 DATE: December 16, 2021 REMANDED Entitlement to a rating in excess of 40 percent for degenerative disc disease L4-5, left, spinal stenosis, post laminectomy syndrome, and herniated nucleus pulposus L-S spine, (hereinafter lumbar spine disability), is remanded. Entitlement to an initial rating in excess of 60 percent for right sciatic nerve radiculopathy, secondary to service-connected lumbar spine disability, is remanded. Entitlement to an initial rating in excess of 20 percent for left sciatic nerve radiculopathy, secondary to service-connected lumbar spine disability, prior to January 13, 2021, is remanded. Entitlement to a rating in excess of 40 percent for left sciatic nerve radiculopathy, secondary to service-connected lumbar spine disability, from January 13, 2021, is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity femoral radiculopathy, secondary to service-connected lumbar spine disability, is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity femoral radiculopathy, secondary to service-connected lumbar spine disability, is remanded. Entitlement to service connection for right ankle disability is remanded. Entitlement to service connection for left ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1983 to January 1985. The Veteran has had a 100 percent combined disability rating since May 31, 2021. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board then remanded the claims in May 2020 for further development. A May 2021 rating decision granted service connection for right sciatic nerve radiculopathy (claimed as right buttock disability, right leg disability, and right calf muscle disability), left sciatic nerve radiculopathy, right lower extremity femoral radiculopathy, and left lower extremity femoral radiculopathy. In Chavis v. McDonough, 34 Vet. App. 1 (2021), the United States Court of Appeals for Veterans Affairs acknowledged that under certain circumstances, the Board has jurisdiction over separate neurological ratings awarded during the adjudication of an increased rating claim for the spine without the need of the claimant filing a specific notice of disagreement for the separately awarded neurological ratings. Here, the Veteran was granted service connection for the above neurological disabilities as secondary to his service-connected lumber spine disability. As these separately granted neurological ratings were awarded in the course of the adjudication of the increased rating claim for the Veteran's lumbar spine disability, the appeal of these ratings is currently before the Board as well. Lastly, in remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to a rating in excess of 40 percent for lumbar spine disability is remanded. 2. Entitlement to an initial rating in excess of 60 percent for right sciatic nerve radiculopathy, secondary to service-connected lumbar spine disability, is remanded. 3. Entitlement to an initial rating in excess of 20 percent for left sciatic nerve radiculopathy, secondary to service-connected lumbar spine disability, prior to January 13, 2021, is remanded. 4. Entitlement to a rating in excess of 40 percent for left sciatic nerve radiculopathy, secondary to service-connected lumbar spine disability, from January 13, 2021, is remanded. 5. Entitlement to an initial rating in excess of 10 percent for right lower extremity femoral radiculopathy, secondary to service-connected lumbar spine disability, is remanded. 6. Entitlement to an initial rating in excess of 10 percent for left lower extremity femoral radiculopathy, secondary to service-connected lumbar spine disability, is remanded. Issues 1-6. The Veteran, and his representative, seeks a higher rating than currently assigned for his disabilities. For reasons explained below, the Board finds that remand is necessary. First, VA examination reports, dated in January 2021 and February 2021, reveal that flares of the lumbar spine were not reported. The record, however, contains evidence that the Veteran has reported flares of the lumbar spine. In this regard, private examination reports, dated in January 2020 and October 2020, show that flares of the lumbar spine were reported. Additionally, VA treatment records, throughout the appeal period, reveal complaints of flares related to the lumbar spine. See, e.g., CAPRI (December 2020), CAPRI (November 2013) & CAPRI (May 2012). It is noted that "the Board cannot uncritically adopt an examiner's assessment of the veteran's level of disability as its own without reconciling that assessment with the other evidence of record." Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019) (citing Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (noting that a medical opinion is "only that, an opinion" providing medical evidence)). The VA examination reports, in this case, are absent a rationale or discussion on these incongruent findings. Thus, the Board finds the VA examination reports inadequate for adjudicative purposes as they are internally inconsistent with the other evidence of record and are subject to differing interpretations. See Adams v. Principi, 256 F.3d 1318, 1322 (Fed. Cir. 2001). Second, the Board cannot make a fully-informed decision on the issue of increased rating for the Veteran's lumbar spine disability because no medical opinion has been obtained to determine if the Veteran is functionally ankylosed. In this regard, application of 38 C.F.R. §§ 4.40 and 4.45 may entitle a veteran to a higher rating that would otherwise be supported by mechanical application of a diagnostic code where a disability causes additional functional loss with use or during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). Ankylosis is defined as immobility of a joint in essence, complete limitation of motion. VA does not consider ankylosis to be a diagnosis rather, it considers ankylosis to be an objective finding like limitation of motion, muscle spasm, guarding, and tenderness. Thus, application of 38 C.F.R. §§ 4.40 and 4.45 permit consideration under the Spine Formula of a rating based on ankylosis, if a veteran's functional loss is the functional equivalent of ankylosis. Chavis, 34 Vet. App. 1. Here, the Board observes medical evidence indicative of significant limitation of motion and pain indicated with motion. For instance, private examination report, dated in October 2020, reflects that the Veteran did not have ankylosis of the lumbar spine; however, the examination report reveals that range of motion measurements were not provided because the Veteran could not "move his back." The record, nevertheless, does not reveal a medical opinion as to whether the functional loss experienced by the Veteran is the functional equivalent of ankylosis, and the Board may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the Board finds that remand is also warranted for an addendum medical opinion that addresses whether the Veteran is functionally ankylosed. Lastly, because a decision on the issue of an increased rating for lumbar spine disability could significantly impact a decision on the issues of increased rating for associated radiculopathy, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, adjudication on the issues of increased rating for associated radiculopathy is deferred pending the outcome of the claim for a rating in excess of 40 percent for lumbar spine disability. 7. Entitlement to service connection for right ankle disability is remanded. 8. Entitlement to service connection for left ankle disability is remanded. Issues 7-8. The Veteran, and his representative, contends that his current bilateral ankle disability stems from service. The Veteran also argues that his right ankle disability is secondary to his left ankle disability. See C&P Exam (November 2020). To ensure that VA has met its duty to assist, the claim must be remanded for further development. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the medical evidence of record is inadequate to decide the claim on appeal. As an initial matter, the Board notes that, in May 2020, the claims were remanded for a VA medical opinion. Although a VA medical opinion was obtained in November 2020, the medical opinion, however, is inadequate as the essential rationale for the conclusion is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In this regard, the opinion concluded that the Veteran's bilateral ankle disability less likely than not had its onset in service, or is otherwise related to an in-service injury, event, or disease during service. In support of the conclusion, the opinion noted that the Veteran's in-service ankles sprains resolved during service; ankle sprains are acute disorders; and that the Veteran's in-service ankle sprains did not result in a chronic condition. In this instance, the opinion notes several medical findings, such as ankle sprains are acute disorders, but no reasoned rationales or medical explanations supporting the reached conclusion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("a medical opinion . . . must support its conclusion with analysis that the Board can consider and weigh against contrary opinions"). Indeed, at most, the Board is able to ascertain the opinion's medical findings and conclusion, however, the essential rationale connecting the medical findings to the conclusion is not discernable and the Board is not competent to substitute its own medical rationale for that of the opinion. Colvin, 1 Vet. App. at 175. Further, the opinion does not discuss or explain evidence to the extent that the Board is able to discern that the clinician was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). In this regard, although the opinion references medical evidence, or the lack of medical evidence, it does not discuss the relevance or significance of such evidence, or lack thereof. Given the above, the Board may not rely upon the VA medical opinion in its present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. 303. Accordingly, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. Stegall v. West, 11 Vet. App. 268 (1998). 9. Entitlement to a TDIU due to service-connected disability is remanded. The Board finds the Veteran's claim for a TDIU is inextricably intertwined with the claims for entitlement to increased ratings and service connection for bilateral ankle disability. Harris, 1 Vet. App. 180 (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, adjudication is deferred pending the outcome of the claims. The matters are REMANDED for the following actions: 1. Obtain all VA treatment records dated from June 2021 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. 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. (a) 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). (b) 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). The examiner must also opine on: (c) Whether it is at least as likely as not the Veteran has, or has had, experienced functional loss of the lumbar spine that is functionally equivalent to ankylosis. Consider and expressly address evidence indicating that the Veteran is unable to move his back. See Disability Benefits Questionnaire-Veteran Provided (October 2020). Explain. (d) Whether the Veteran has, or has had, experienced flares of the lumbar spine at any time during the pendency of the claim or recent to the filing of the claim. Attempt to reconcile, or explain, lay and medical evidence showing negative and positive findings for flare-ups. Explain. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's bilateral ankle disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any ankle disability. NOTE (1): The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (2): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (3): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. The clinician must opine on: Direct Service Connection (a) Whether any ankle disability (right or left) at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address in-service complaints, signs or symptoms, and treatment related to the ankles. Explain. Secondary Service Connection (b) If the Veteran is found to have a left ankle disability service-connected, then opine on whether any right ankle disability is at least as likely as not (1) proximately due to service-connected left ankle disability, or (2) aggravated beyond its natural progression by service-connected left ankle disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. 4. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.