Citation Nr: 21074974 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-23 828 DATE: December 16, 2021 ORDER Entitlement to a rating in excess of 40 percent for service connected left lower extremity radiculopathy is dismissed. REMANDED Entitlement to a rating in excess of 10 percent prior to August 14, 2017 for degenerative disc and joint disease of the lumbar spine, with intervertebral disc syndrome (IVDS) is remanded. Entitlement to a rating in excess of 20 percent from August 14, 2017 to January 21, 2020 for degenerative disc and joint disease of the lumbar spine, with IVDS is remanded. Entitlement to a rating in excess of 40 percent from January 21, 2020 for degenerative disc and joint disease of the lumbar spine, with IVDS is remanded. Entitlement to service connection for a right lower extremity neurological condition secondary to a lumbar spine disability is remanded. Entitlement to service connection for a left hip condition secondary to a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 21, 2020 is remanded. FINDING OF FACT The Veteran did not challenge to the Court of Appeals for Veteran's Claims (Court) the October 2020 Board decision denying entitlement to an increased rating in excess of 40 percent for left lower extremity radiculopathy; there is no remaining case or controversy pertaining to this issue. CONCLUSION OF LAW As there is no case or controversy within the Board's jurisdiction, the issue of entitlement to an increased rating in excess of 40 percent for left lower extremity radiculopathy is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1962 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. Entitlement to a rating in excess of 40 percent for service connected left lower extremity radiculopathy, since December 10, 2014, is dismissed. In an October 2020 Board decision, the Board denied the Veteran's claim of entitlement to an increased rating in excess of 10 percent prior to August 14, 2017, in excess of 20 percent from August 14, 2017 to January 21, 2020 and in excess of 40 percent from January 21, 2020 for degenerative disc and joint disease of the lumbar spine, with IVDS and denied an initial increased rating in excess of 40 percent for left lower extremity radiculopathy. The Veteran challenged the issue of an increased rating for the lumbar spine disability for the entirety of the period on appeal to the Court. However, the Veteran did not challenge the Board's denial of entitlement to an evaluation in excess of 40 percent for left lower extremity radiculopathy. The Court granted a June 2021 Joint Motion for Partial Remand (JMPR), which specifically instructed the Board to dismiss this issue. Cacciola v. Gibson, 27 Vet. App. 45, 47 (2014). As such, the appeal as to this remaining issue is dismissed. Id. REASONS FOR REMAND Higher Ratings for Degenerative Disc and Joint Disease of the Lumbar Spine As the Veteran appealed the October 2020 Board decision denying the issue of entitlement to increased ratings for degenerative disc and joint disease of the lumbar spine with IVDS, for the entirety of the period on appeal, the Court granted the June 2021 JMPR, in which the Parties agreed that the Board erred in failing to do four things: 1) ensure that VA satisfied its duty to assist in providing adequate examinations; 2) provide an adequate statement of reasons or bases to discuss whether Veteran's inability to perform repetitive use testing due to pain at the January 2020 examination is the functional equivalent of ankylosis for a higher rating; 3) consider reasonably raised secondary service condition for a right lower neurological condition and left hip condition secondary to his service-connected lumbar spine disability; and 4) adjudicate the issue of entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to January 21, 2020, as part and parcel with his earlier increased rating claims. Thus, as discussed below, the matters identified in the JMPR are remanded, pursuant to 38 U.S.C. § 7252(a), for action consistent with the terms of the joint motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). First, the Parties agreed that remand was warranted to obtain a retrospective medical opinion that adequately assesses the Veteran's functional loss after repeated use over time, during flare-ups, on active and passive motion and in weight bearing and non-weight bearing for the entirety of the appeal period prior to January 21, 2020. The Parties agreed that the Board erred in failing to ensure that VA satisfied its duty to assist in providing adequate examinations and in failing to provide an adequate statement of reasons or bases for its decisions. For the period prior to August 14, 2017, the Board relied on the April 2015 VA examination. However, the April 2015 examiner did not provide a range of motion (ROM) on repeated use over time, flare-ups, nor on weight bearing. Specifically, the Parties found that the examiner did not examine the Veteran following repeated use over time or during flare-ups and indicated that the Veteran's pain caused functional loss during repeated use over time and during flare-ups but failed to provide a range of motion (ROM) for his functional loss stating that designating a numerical ROM without measurement is inherently speculative. The Parties agreed that the examination was inadequate for failing to estimate ROM loss, including by procuring information regarding the degree of loss from the Veteran himself, or adequately explaining why such an estimate was not feasible. The Parties agreed that the April 2015 VA examination indicated that there was evidence of pain with weight bearing, but did not provide any ROM measurements for the degree of functional loss, or indicate that any of the other testing was performed, rending the examination inadequate. For the period from August 14, 2017 to January 21, 2020, the Parties found that the Board relied on the March 2018 examination, conducted by the same examiner, and found that examination inadequate as the examination report contained the same errors. Again, the examiner did not attempt to determine the extent of ROM functional loss after repeated use over time, during flare-ups, on weight bearing and on passive ROM testing. Second, the Parties agreed that remand was warranted for the Board to consider and discuss whether the Veteran's inability to perform repetitive use testing due to pain at the January 2020 examination, is the functional equivalent of ankylosis, thereby supporting a higher evaluation. The Parties noted that the requirement of ankylosis in VA's General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis during a flare, being cognizant of further development with Chavis v. McDonough, --Vet. App.--, slip op. at 2 No. 18-2928 (Apr. 16, 2021). Service Connection for a Right Lower Extremity Neurological Condition and a Left Hip Condition Third, the JMPR specifically stated that the secondary issues of entitlement to a right lower extremity neurological condition and to a left hip condition were reasonably raised by the record, and it instructed the Board (as opposed to just VA or the Regional Office) to develop and adjudicate these claims for secondary service connection. Generally, the Board does not have jurisdiction over issues that have not been appealed to the Board, and the JMPR indicated that these were claims for secondary service connection, and not just for additional symptomatology that is part of the claim for an increased rating for the lumbar spine. Nevertheless, the Board will defer to the instructions of the JMPR, which are binding on the Board, and it includes these issues as part of the current appeal, and remands them for further development and adjudication. Entitlement to a TDIU rating prior to January 21, 2020 Finally, the Parties agreed that remand was warranted for the Board to adjudicate the issue of entitlement to a TDIU for the period prior to January 21, 2020, as the Board erred by failing to adjudicate the issue of TDIU as part and parcel with his earlier increased rating claims, when in his May 2016 formal appeal to the Board, the issue was reasonably raised when the Veteran stated he was no longer able to work due to the severity of his back pain. The matters are REMANDED for the following action: 1. Obtain all VA treatment records since July 2020. 2. Schedule the Veteran for a new examination to assess the severity of his lumbar spine disability, and to provide a retrospective opinion on its severity from December 10, 2013 to the present. If feasible, the examination may be held via telehealth during social distancing restrictions. a) The examiner must attempt to provide a retrospective opinion on the Veteran's additional loss of function with repeated use over time and during flare ups, for the entire period from December 10, 2013 to the present. The examiner should provide this opinion based on all the procurable resources, such as VA treatment records, as well as the Veteran's statements regarding his functional limitations. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. b) The examiner is also asked to address whether the Veteran's past examinations indicated that his range of motion testing was performed with both active and passive motion, and with and without weight-bearing. If not, would such testing have resulted in any additional loss of range of motion? Why or why not? c) The April 2015 VA examination indicated that there was evidence of pain with weight bearing, but did not provide any ROM measurements for the degree of functional loss. Is it possible to estimate what the likely limitation of motion with weight-bearing was at that time? d) Discuss the functional impairments caused by the Veteran's lumbar spine disability and associated neurological symptoms, including their impact his occupational functioning and activities of daily living, since December 10, 2013. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. A complete rationale for any opinions rendered should be provided. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his right extremity neurological condition and any left hip condition. If feasible, the examination may be held via telehealth during social distancing restrictions. The examiner should provide a full description of the right extremity neurological condition and left hip disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities. The examiner is asked to opine whether: a) Is it at least as likely as not that the Veteran's right extremity neurological condition or left hip condition are etiologically related to his military service, including his in-service vehicular accident? b) Are the Veteran's right extremity neurological condition or left hip condition symptoms of his service-connected lumbar spine disorder? c) Is it at least as likely as not that the Veteran's right extremity neurological condition or left hip condition are proximately due to OR aggravated by his service-connected disability lumbar spine disability? The examiner should also note any further functional limitations due to pain, weakness, fatigue, lack of endurance, incoordination, or any other symptom resulting in functional loss, including during flare ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, without speculation, the examiner must explain whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or a deficiency in the examiner. 4. When the development sought above is completed, re-adjudicate the claim of entitlement to a TDIU rating prior to January 21, 2020. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.