Citation Nr: A21020468 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 190822-24616 DATE: December 23, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative arthritis of the spine is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy, left lower extremity, sciatic nerve is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy, right lower extremity, sciatic nerve is remanded. Entitlement to service connection for peripheral vestibular disorder (PVD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from June 1970 to June 1974. As background, the agency of original jurisdiction (AOJ) issued a March 2019 rating decision that denied the Veteran's claims for an increased rating in excess of 20 percent for her lumbar spine disability (then characterized as lumbar spine degenerative disc disease/spondylosis) and in excess of 10 percent each for her left and right lower extremity radiculopathies, as well as denying service connection for PVD. In May 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of the March 2019 rating decision based on new and relevant evidence. In a June 2019 rating decision, the AOJ issued the supplemental claim decision, which found that new and relevant evidence had not been received. The AOJ's June 2019 rating decision continued to deny the increased rating claims for a lumbar spine disability and left lower extremity radiculopathy, and service-connection for PVD. However, the AOJ increased the right lower extremity radiculopathy disability rating from 10 to 20 percent, effective from February 4, 2019. In July 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the June 2019 rating decision. In August 2019, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior June 2019 rating decision. The August 2019 rating decision continued to deny a rating in excess of 20 percent for degenerative arthritis of the spine, a rating in excess of 20 percent for right lower extremity radiculopathy, a rating in excess in excess of 10 percent for left lower extremity radiculopathy, and service connection for PVD. In the August 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. As such, in this case, the Board may only consider the evidence of record at the time of the June 2019 rating decision (same as the August 2019 HLR decision on appeal), as well as any evidence submitted by the Veteran or her attorney with, or within 90 days from receipt of, the August 2019 VA Form 10182. 38 C.F.R. § 20.303. In October 2020, the Board issued a decision denying the claims for entitlement to a rating in excess of 20 percent for degenerative arthritis of the spine, a rating in excess of 20 percent for right lower extremity radiculopathy, a rating in excess in excess of 10 percent for left lower extremity radiculopathy, and service connection for PVD. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (CAVC). By June 2021 Order, the CAVC granted a June 2020 Joint Motion for Remand (JMR) filed by both VA and Appellant that vacated the Board's prior October 2020 decision, and remanded the matter to the Board. The file is again before the Board for further appellate review. 1. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the spine Per the JMR, the June 2019 VA examiner did not perform passive range of motion testing or weight-bearing motion testing, despite the Veteran's reports of "consistently severe" back pain. Thus, the lumbar spine examination was inadequate. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) (holding that examinations of joints should, wherever possible, include the results of range of motion testing for active range of motion, passive range of motion, weight-bearing range of motion, and non-weight-bearing range of motion); Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017) (explaining that direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion). As this was a pre-decisional error in the duty-to-assist, a retrospective opinion addressing the Veteran's range of motion limitations during flare ups, active and passive motion, and weight-bearing and non-weightbearing is necessary. See Sharp v. Shulkin, 29 Vet. App. 26 (2019); Correia v. McDonald, 28 Vet. App. 158 (2016). 2. Entitlement to a rating in excess of 10 percent for radiculopathy, left lower extremity, sciatic nerve 3. Entitlement to a rating in excess of 20 percent for radiculopathy, right lower extremity, sciatic nerve The June 2019 VA peripheral nerves examination was inadequate because it did not provide rationale for its findings of "moderate" incomplete paralysis of the sciatic nerve on the right side or for "mild" incomplete paralysis of the sciatic nerve on the left side. As this was a pre-decisional error in the duty-to-assist, a retrospective opinion addressing the severity of the Veteran's sciatic nerve radiculopathies of the lower extremities is necessary. 4. Entitlement to service connection for PVD Per the JMR, the June 2019 VA examiner's negative nexus opinion for the Veteran's PVD, diagnosed as benign paroxysmal positional vertigo (BPPV), was inadequate. Notably, the examiner's recitation of the history of the Veteran's vestibular symptoms appears to have been inaccurate, noting onset of vestibular symptoms since 2017, whereas her lay statements and other medical records on file indicated a more extensive history of such symptoms dating back to service. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As this was a pre-decisional error in the duty-to-assist, an addendum medical opinion must be obtained on remand. The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion from a qualified VA clinician to determine the severity of the Veteran's lumbar spine disability and associated bilateral lower extremity radiculopathy prior to June 2019. After reviewing the record, the examiner should comment whether there was any increased functional impairment due to the Veteran's lumbar spine disability and radiculopathies in the time period from February 2018 (one year prior to the February 2019 claim) to June 2019. In particular, the examiner should provide a retrospective opinion as to the range of motion prior to June 2019 of the lumbar spine disability, including (a) whether there was any limitation of motion during flare-ups; and (b) whether there was any limitation of motion during active motion, passive motion, weight-bearing and/or non-weight-bearing. To the extent possible, range of motion estimates should be provided. The examiner should comment on whether the Veteran's functional impairment of the lumbar spine more nearly approximates forward flexion to 30 degrees or less, or favorable or unfavorable ankylosis of the thoracolumbar spine, or unfavorable ankylosis of the entire spine. The examiner should also comment on the severity of bilateral lower extremity radiculopathy. A complete rationale should be provided for all opinions rendered. The Veteran's lay statements must be considered as well as the pertinent evidence of record. Additionally, if the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so, to include why providing range of motion estimates is not feasible, if appropriate. 2. Obtain a VA medical opinion by an appropriate clinician to determine the etiology of the Veteran's PVD. The examiner should indicate that the record was reviewed. The examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PVD is caused by or otherwise etiologically related to service. Rationale must be provided for the opinion proffered. Also reconcile any competent lay statements by the Veteran regarding her vestibular problems during and since service. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.