Citation Nr: 21076251 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-38 376 DATE: December 22, 2021 ORDER Entitlement to an effective date of November 1, 2013 for the award of an initial 40 percent rating for intervertebral disc syndrome (IVDS) is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an effective date of March 25, 2015, but no earlier, for the grant of service connection for angina is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to an initial rating higher than 40 percent for IVDS is remanded. Entitlement to a higher initial rating for left lower extremity radiculopathy, rated noncompensable from November 1, 2013 through October 15, 2019, and 10 percent disabling from October 16, 2019, is remanded. Entitlement to an initial rating higher than 10 percent for angina is remanded. Entitlement to service connection for chronic fatigue is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from November 1, 2013 through July 10, 2018, is remanded. FINDINGS OF FACT 1. The Veteran submitted his claim of service connection for back disability on December 10, 2013, within one year from his date of separation from service. 2. The record reflects that the Veteran had moderate to severe back pain going back to the beginning of his claim, and that he had flare-ups that severely limited his range of motion; range of motion with flare-ups and repeated use was not considered by the August 2014 VA lumbar examination. 3. The Veteran submitted an intent to file a claim on March 25, 2015, associated with his claim of service connection for angina. CONCLUSIONS OF LAW 1. The criteria for an effective date of November 1, 2013 for the award of an initial 40 percent rating for IVDS have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400(2). 2. The criteria for an effective date of March 25, 2015, but no earlier, for the grant of service connection for angina have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2005 to October 2013, which includes service in the Southwest Asia theater of operations. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2014 and August 2015 rating decisions issued by the Department of Veterans Affairs Regional Office (RO). The appeal was previously before the Board in December 2018, when the Board remanded the issues of entitlement to an initial compensable rating for a lumbar disability, entitlement to service connection for fatigue, entitlement to an initial rating in excess of 10 percent for angina, and entitlement to an earlier effective date for the grant of service connection for angina. The Board notes that in a July 2020 rating decision the agency of original jurisdiction (AOJ) assigned a 40 percent rating for IVDS, effective October 16, 2019. As that was not a full grant of benefits, the Board retains jurisdiction to address the issue of entitlement to a higher initial rating for IVDS. Additionally, the Veteran has raised the issue of entitlement to an earlier effective date for the grant of an increased rating to 40 percent. As the issue of an earlier effective date is part and parcel of the appeal for a higher initial rating for IVDS, the Board has jurisdiction to address the issue. In June 2020, the RO issued a supplemental statement of the case. The appeal has now returned to the Board for further appellate review. The Board acknowledges that following the issuance of the June 2020 supplemental statement of the case, new VA medical records were received in the case file. However, the new VA medical records are not relevant to the issues on appeal. Therefore, a waiver of AOJ review is not necessary. 38 C.F.R. § 19.37; 38 U.S.C. § 7105(c). The Veteran contends that he is entitled to an effective date for the grant of an increased rating of 40 percent for IVDS going back to November 1, 2013, the day after his separation from service, because he has had that level of disability since his separation from service and he filed his claim of service connection for a lumbar disability within one year of his separation. The Veteran also contends that he should have an earlier effective date for the award of service connection for angina and that he is entitled to a rating in excess of 10 percent for his service-connected angina because it has caused his heart to malfunction and caused damage to the vessels of his right carotid artery. The Veteran further maintains that, although the VA opinion indicates that he does not have a diagnosis of chronic fatigue syndrome, he does have chronic fatigue and it should be considered whether his chronic fatigue is secondary to his service-connected posttraumatic stress disorder (PTSD). The Veteran also argues that he has not been able to maintain consistent employment since his separation from service and every time he gets a job, he either has back pain, headaches, anxiety/PTSD or chest pain that cause him to be unable to work. Therefore, he should be determined to have been TDIU prior to July 11, 2018. As the Veteran's TDIU claim was raised as part and parcel of his appeal for a higher initial rating for IVDS, the claim period for the TDIU issue dates back to the November 1, 2013 effective date of service connection for IVDS. Therefore, the TDIU issue has been characterized as set forth above. Lastly, in the July 2020 rating decision, a Decision Review Officer (DRO) awarded service connection for left lower extremity radiculopathy, as secondary to service-connected IVDS. Therefore, the Board has expanded the appeal to include the issue of entitlement to a higher initial rating for left lower extremity radiculopathy, as part of the appeal for a higher initial rating for the service-connected back disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (providing that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code). Effective Date The effective date of an initial rating for disability compensation is the day following separation from active service or the date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). 1. Entitlement to an earlier effective date of November 1, 2013 for an initial grant of a 40 percent rating for a lumbar disability The Veteran separated from military service on October 31, 2013, and he submitted his claim of service connection for a lumbar disability on December 10, 2013, within one year of his separation from military service. Therefore, the appropriate effective date for the initial rating is November 1, 2013. The Veteran was initially given a non-compensable rating for his service-connected back disability. In August 2014, the Veteran was afforded a VA lumbar spine examination associated with his claim of service-connection for a lumbar spine disability. The Veteran reported flare-ups that were productive of pain level 10/10 and locking-up of his back. However, the examiner did not consider the Veteran's range of motion with flare-ups. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. As the August 2014 examiner failed to consider the Veteran's range of motion with flare-ups, the August 2014 examination was inadequate. Per the December 2018 Board remand, the Veteran was afforded a new VA lumbar spine examination on October 16, 2019. The examiner did consider range of motion with flare-ups which supported a rating of 40 percent. As such, the AOJ granted an increased rating of 40 percent for the lumbar spine disability, effective from October 16, 2019. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings). In this case, however, a staged rating is not appropriate because the initial VA lumbar examination used to support a non-compensable rating was not adequate. Furthermore, the evidence shows that the Veteran had lumbar symptoms prior to separating from the military which continued after his separation. The evidence also reveals that the Veteran had chronic low back pain, moderate to severe lumbar pain, and tightness and tenderness of the low back just shortly after he submitted his claim of service-connection for a lumbar spine disability. See Medical Reports, January 10, 2014 and January 30, 2014. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Affording the Veteran all benefit of the doubt, the evidence sufficiently demonstrates that the symptomology with flare-ups that was productive of a 40 percent rating was present from the initiation of the claim of service connection for a lumbar spine disability. The Board finds that the rating of 40 percent for a lumbar disability is most appropriately construed as an initial rating. Accordingly, entitlement to an effective date of November 1, 2013 for the award of an initial 40 percent rating for IVDS is warranted. This is the earliest possible effective date. 2. Entitlement to an effective date of March 25, 2015 for the grant of service connection for angina The Veteran submitted his claim of service connection for angina on April 29, 2015. However, an intent to file a claim associated with the service connection claim for angina was submitted on March 25, 2015. As such, the Veteran preserved the date of March 25, 2015 when he submitted the intent to file. Therefore, the Veteran submitted his claim of service connection for angina on March 25, 2015. The effective date an award of service connection is assigned is not based on the date the disability appeared, or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377, 382-383 (1999). The AOJ received the Veteran's claim associated with service connection for his angina on March 25, 2015. Therefore, the proper effective date of service connection of the Veteran's angina is March 25, 2015. Accordingly, entitlement to an effective date of March 25, 2015 for the award of service connection for angina is warranted. REASONS FOR REMAND 1. Entitlement to an initial rating higher than 40 percent for IVDS and entitlement to a higher initial rating for left lower extremity radiculopathy (rated noncompensable from November 1, 2013 through October 15, 2019 and 10 percent disabling from October 16, 2019) are remanded A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Consistent with this, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Furthermore, VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159(c). In accordance with the December 2018 Board remand, the Veteran was afforded a new VA lumbar spine examination in October 2019. As discussed above, the examiner properly considered range of motion with flare-ups. However, the examiner determined that the Veteran has the diagnosis of IVDS, and as such, the Veteran's lumbar spine disability should have also been considered for a rating under 38 C.F.R. §§ 4.71A, Diagnostic Code 5243. Diagnostic Code 5243 provides rating criteria for IVDS symptoms based on incapacitating episodes. The examiner failed to address whether the Veteran had incapacitating episodes during the past 12 months. As such, vital information was not provided that could have established a rating in excess of 40 percent based on a rating under Diagnostic Code 5243. Therefore, the October 2019 VA lumbar spine examination did not provide adequate information to rate the Veteran based on IVDS and a remand is necessary to further develop the Veteran's entitlement to a rating in excess of 40 percent based on IVDS. Furthermore, the Veteran reported in the August 2014 VA lumbar spine examination that his back would lock-up. The October 2019 VA lumbar spine examination also noted that the Veterans back flare-ups occur weekly, are severe, and they last 1 to 2 days. This description of the Veteran's back flare-ups indicates potential locking-up of the back during flare-ups as described at the August 2014 VA examination. While the October 2019 VA examiner indicated that there was no ankylosis, the examiner did not consider whether the Veteran's lay statements showed the functional equivalent of favorable or unfavorable ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (stating that the rating criteria for a lumbar spine disability can be met with evidence of the functional equivalent of ankylosis during a flare-up). On remand, the examiner must consider whether the evidence of record, to include the Veteran's lay statements, shows the functional equivalent to favorable or unfavorable ankylosis under 38 C.F.R. § 4.71A, Diagnostic Code 5242. Moreover, as additional information will be obtained during the requested VA back examination which is pertinent to the issue of entitlement to a higher initial rating for left lower extremity radiculopathy, Board action on this matter at this time would be premature. Hence, this matter is being remanded, as well. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Martinez Vista electronic records system (dated to May 2021), the Honolulu Vista electronic records system (dated to August 2015), and the Houston Vista electronic records system (dated to June 2020). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to an initial rating higher than 10 percent for angina is remanded The Veteran's angina is rated as coronary artery disease under 38 C.F.R. § 4.104, Diagnostic Code 7005. Rating under this code is based in part on the level of metabolic equivalents (METs) at which dyspnea, fatigue, angina, dizziness, or syncope develops. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When a METs level is required for evaluation but a laboratory determination by exercise testing cannot be done for medical reasons, an estimate by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) may be used. 38 C.F.R. § 4.104, Note (2). The Veteran's current 10 percent rating is warranted for a METs level greater than 7 but not greater than 10, or for a requirement of continuous medication. A higher 30 percent rating is warranted for a METs level greater than 5 but not greater than 7, or for evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, for a METs level greater than 3 but not greater than 5, or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, for a METs level of 3 or less, or for left ventricular dysfunction with an ejection fraction of less than 30 percent. The Veteran was afforded a VA heart examination in October 2019. The examiner only provided an interview based METs test. The examiner's explanation for not performing an exercise stress test was that the interview based METs was an accurate description. However, such a justification disregards the regulations preference for an exercise test unless medical concerns dictate otherwise. No justification based on medical reasons was indicated. The Board finds that remand is necessary to obtain an adequate examination of the Veteran's angina. See Barr; see also Stegall. Specifically, a physical METs test should be conducted, if possible. The October 2019 VA examiner did not conduct a physical METs test but instead gave an interview-based METs estimation only. An interview-based estimation is adequate only when the examiner gives an explanation as to why such a stress test is medically impermissible. See 38 C.F.R. §§ 4.100, 4.104. Also, all outstanding VA treatment records should be secured upon remand. 3. Entitlement to service connection for chronic fatigue is remanded The Veteran was afforded a VA chronic fatigue syndrome examination in October 2019. The examiner opined that the Veteran does not have chronic fatigue as a sign of an undiagnosed chronic multi-symptom illness, and he does not have evidence of chronic fatigue syndrome related to exposures in Southwest Asia. The examiner acknowledged that the Veteran has chronic fatigue but related his chronic fatigue to poor sleep and his psychiatric disorder. Based on these conclusions the AOJ denied the Veteran's claim based on a lack of a diagnosis. The examiner checked a box that the Veteran's functional ability is not impacted by chronic fatigue syndrome. However, this appears to be indicated only because a diagnosis of chronic fatigue syndrome was not made. The examiner did not discuss whether the Veteran's documented chronic fatigue symptoms impacted his functional ability, and if not, why his functional ability was not impacted by his chronic fatigue. A disability for purposes of establishing service connection is an injury or disease that results in functional impairment, and "the disability itself need not be diagnosed." See Saunders v. Wilkie, 886 F.3d 1356 (2018). (finding that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability."). As the Veteran's functional ability due to his chronic fatigue was not discussed, the October 2019 VA fatigue examination was not adequate. Id.; see also Barr; Stegall. Furthermore, the VA examiner indicated that the Veteran's chronic fatigue may be associated with his service-connected PTSD. As such, the issue of whether the Veteran's chronic fatigue is secondary to, or aggravated by, his service-connected PTSD should have been discussed. A medical opinion is inadequate when it does not consider all raised theories of entitlement. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Also, all outstanding VA treatment records should be secured upon remand. 4. Entitlement to a TDIU, from November 1, 2013 through July 10, 2018, is remanded As the Veteran's TDIU claim is inextricably intertwined with the claims on appeal that have been remanded, the claim for a TDIU prior to July 11, 2018 must also be remanded, and action on that matter is deferred. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991).; see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Implement the Board's award of earlier effective dates for the award of service connection for angina and the award of an initial 40 percent rating for IVDS. 2. Obtain the Veteran's outstanding VA treatment records from the Martinez Vista electronic records system for the period since May 2021; the Honolulu Vista electronic records system for the period since August 2015; the Houston Vista electronic records system for the period since June 2020; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the current severity and manifestations of his service-connected back disability and associated neurological 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. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. The examiner must address whether the Veteran's IVDS has been productive of incapacitating episodes during the past 12 months. The examiner must also consider whether the evidence of record, to include the Veteran's lay statements, shows the functional equivalent to favorable or unfavorable ankylosis under Diagnostic Code 5242. If functional equivalent of favorable or unfavorable ankylosis is indicated, the examiner should state when such functional ankylosis began. It should be noted 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 evaluating the Veteran's lumbar disability under the rating criteria. The examiner should also provide the ranges of spinal motion in degrees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and non-weight-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 so in the report. The examiner shall elicit information from the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups and with repeated use over time. If it is determined that the Veteran does not have flare-ups, an explanation for that determination must be provided. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to his disability. 38 C.F.R. § 4.40, 4.45, 4.59. In this regard, the examiner must indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. This testing should be done regardless of whether the Veteran is tested during a flare-up or not. 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 why that is so. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the level of severity of his angina. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria. The claims file must be reviewed by the examiner. The Veteran must undergo a physical METs test unless the examiner determines that he is unable to do so for medical reasons, in which case the examiner must provide an explanation as to why. All opinions are to be accompanied by a rationale consistent with the evidence of record. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination to determine the nature and etiology of any current disability manifested by chronic fatigue. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his VA treatment records, lay assertions, and the pertinent medical evidence. After examining the Veteran and thoroughly reviewing the claims file, the examiner should respond to the following: a.) If possible, provide a diagnosis of the Veteran's symptom of chronic fatigue. b.) If no diagnosis can be provided, opine whether the Veteran's reports of chronic fatigue amount to functional impairment of earning capacity. c.) If the Veteran's chronic fatigue is not a symptom of an identifiable disability, opine whether the fatigue represents an objective indication of chronic disability resulting from (1) an undiagnosed illness; OR (2) a medically unexplained chronic multisymptom illness without conclusive pathophysiology OR etiology (including, but not limited to, chronic fatigue syndrome). c.) If a diagnosis is made, opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition had (i) its onset during service, (ii) within the initial year after separation, or (iii) is otherwise related to his active service. d.) Based on the examination and review of the record, the examiner is also asked to provide an opinion whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's chronic fatigue was caused by, or aggravated by, his service-connected PTSD. The examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.