Citation Nr: 21075117 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-35 893 DATE: December 17, 2021 ORDER Prior to September 9, 2021, entitlement to a rating in excess of 20 percent for mechanical thoracolumbar muscle strain with degenerative disc disease (DDD) is remanded. Since September 9, 2021, entitlement to a rating in excess of 40 percent for mechanical thoracolumbar muscle strain with DDD is remanded. For the period from May 28, 2010 to March 17, 2020, entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. From March 17, 2020 to September 9, 2021, entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Since September 9, 2021, entitlement to a rating in excess of 40 percent for radiculopathy of the left lower extremity is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability as the result of service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1983 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Agency of Original Jurisdiction (AOJ). A February 2010 rating decision granted service connection for a back disability and assigned a noncompensable rating. A January 2014 rating decision granted service connection for radiculopathy of the left lower extremity and assigned a 10 percent rating. The Veteran appealed the February 2010 determination to the Board, which, in July 2014, assigned a 10 percent rating to the Veteran's back disability before September 23, 2013, and a 20 percent rating thereafter. The Veteran appealed the Board's decision, and pursuant to an April 2015 Joint Motion for Partial Remand (JMPR), the United States Court of Appeals for Veterans Claims (Court) vacated the Board's July 2014 decision to the extent it denied a rating in excess of 10 percent for a back disability before September 23, 2013. In September 2015, the Board granted an initial rating of 20 percent for the back disability, which represented a final decision on that issue. The Board also remanded the issue of entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity. These findings were then implemented in an October 2015 rating decision, which assigned the 20 percent rating of the Veteran's back disability, effective August 9, 2006. The September 2015 Board decision was not appealed to the Court. Also in September 2015, contemporaneous with the Board's decision, the Veteran filed a claim of entitlement to a TDIU, which the RO interpreted as encompassing a claim for an increase in the back disability. These matters were before the Board in November 2019, at which time the Board remanded the Veteran's claims in order to obtain additional medical treatment records and schedule the Veteran for VA examinations. The AOJ undertook appropriate efforts to obtain such records, and the Veteran underwent the requested examination in March 2020. Thereafter, a May 2020 rating decision increased the rating of radiculopathy of the left lower extremity to 20 percent effective March 17, 2020, and granted service connection for radiculopathy of the right lower extremity with a 20 percent rating effective March 17, 2020. In June 2021, the Board again remanded these matters to the RO for additional development and consideration. Thereafter, a September 2021 rating decision increased the back disability rating to 40 percent, effective from September 9, 2021, and also increased the left lower extremity radiculopathy to 40 percent, effective from September 9, 2021. Given this case's long history of remands, the Board regrets that remand is unfortunately necessary again. 1. Lumbar spine disability In compliance with the Board's June 2021 remand directives, the Veteran was again scheduled for a VA examination to determine the nature and severity of his lumbar spine disability and, specifically, the to afford the Veteran an examination that complied with the holding in Sharp v. Shulkin, 29 Vet. App. 26, 3436(2017). The Veteran was examined by VA in September 2021. See September 2021 VA Back Conditions DBQ. The Veteran reported his balance is lessening and has resulted in a fall during which he broke some ribs. He also described leg weakness and daily constant back pain. He stated the sciatic nerve causes lots of issues, and he has tired acupuncture, message, trigger point injections, and wears a back brace most of the time. He reported flare-ups occurring randomly daily, last minutes to hours, and characterized by a sharp and nauseating pain. The Veteran stated that his life is limited quite a bit as he is on the couch the majority of the time. He stated that his back disability has taken away the ability be a contributing member of the family. In relevant part, during the physical examination of the Veteran, the examiner noted that he was not examined immediately after repeated use over time but the examiner found that the statements from the Veteran elicited during the course of the examination suggested pain, fatigability, weakness, lack of endurance, incoordination, and a feeling like his limbs were hanging, tired, and exhausted significantly limits functional ability. The estimated range of motion findings were 5 degrees for all directions. The examiner goes on to note there was no evidence of ankylosis of the lumbar spine. However, the Board finds that the Veteran's statements and severely restricted estimated range of motion of the lumbar spine following repeated use raises the question of whether the Veteran may in fact suffer from functional ankylosis and, if so, whether it is favorable or unfavorable ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). As such, a remand for an addendum opinion is required. 2. Right and left lower extremity radiculopathy Any development concerning the severity of the lumbar spine disability may illicit information pertaining to the right and left lower extremity radiculopathy, entitlement to higher ratings for these disabilities is inextricably intertwined with the above requested development of the lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. TDIU Finally, the determination of whether the Veteran is entitled to a TDIU is inextricably intertwined with the above requested development of the lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the September 2021 VA examiner, addressing the severity of the Veteran's service-connected lumbar spine disability. The entire claims file must be made available to and reviewed by the examiner. No additional examination is necessary unless the examiner determines otherwise. If the examiner indicates that he/she is unable to render an opinion without a concurrent examination, an examination must be scheduled. After reviewing the claims file and all lumbar spine and knee examinations of record and, particularly the September 2021 VA Back Conditions DBQ, the examiner should: (a.) Please opine as to whether the Veteran's lumbar spine symptoms amount to "functional ankylosis," or the equivalent of fixation in flexion or extension, especially in light of the severely restricted range of motion findings following repeated use. (b.) If the examiner opines that the Veteran's symptoms amount to functional ankylosis of the lumbar spine, please provide (1) an estimated onset date of functional ankylosis, (2) and indicate whether such ankylosis is favorable or unfavorable, citing to the evidence of record relied upon to make such an estimate. The examiner must include a discussion of the Veteran's reports of lumbar symptoms and functional impact as well as examination findings to support the opinion. 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. 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.