Citation Nr: 21005946 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-01 731 DATE: February 2, 2021 REMANDED An increased disability rating in excess of 20 percent prior to January 9, 2020 and in excess of 40 percent thereafter for residuals of a laminectomy for discogenic disease of the lumbosacral spine (with scar) is remanded. A rating in excess of 10 percent for right lower extremity radiculopathy associated with residuals, laminectomy, discogenic disease, lumbosacral spine (with scar) is remanded. A total disability rating based on individual unemployability (a TDIU rating) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1976 to December 1979. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, a videoconference hearing was held before the undersigned Veteran’s Law Judge. A copy of the transcript is associated with the file. The Board remanded these matters for additional development in June 2019. In July 2020, the RO granted the Veteran an increased disability rating to 40 percent for his lower back disability and an initial rating of 10 percent for his right lower extremity radiculopathy effective January 9, 2020 but did not address the Veteran’s TDIU claim. The issues have now returned to the Board for adjudication. In August 2020 correspondence the Veteran indicated that he wanted to withdraw his appeals. In a November 2020 letter to the Veteran, the VA notified the Veteran that he had 30 days to clarify which of his appeals he wanted to withdraw. The Veteran did not respond to the letter within the 30-day response period. Therefore, the Board will proceed with addressing the claims. 1. An increased disability rating in excess of 20 percent prior to January 9, 2020 and in excess of 40 percent thereafter, for residuals of a laminectomy for discogenic disease of the lumbosacral spine (with scar) is remanded. The issues are remanded to provide the Veteran with an adequate medical examination report. In the June 2019 remand, the Board directed the AOJ to schedule the Veteran for a VA examination to determine the current severity of his service-connected back disability, and for a supplemental retrospective medical opinion as to the severity during the entire appeal period. In January 2020, the Veteran was afforded a VA Back Conditions examination. See January 2020 C&P exam. The examiner reported on the current status of the Veteran’s lower back disability and opined that “further degeneration of the spine has now caused the affected nerve root compression which has produced signs and symptoms consistent with a radiculopathy and meets the IVDS diagnostic criteria outlined by the VA.” However, the examiner did not provide a retrospective medical opinion as required by the June 2019 remand directives. Therefore, the January 2020 examination does not comply with the Board's June 2019 remand directives and a new examination is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). 2. A rating in excess of 10 percent for right lower extremity radiculopathy associated with residuals, laminectomy, discogenic disease, lumbosacral spine (with scar) is remanded. This issue is remanded as intertwined with the back disability claim on appeal because the VA spine examiner will describe the Veteran's radiculopathy symptoms and provide relevant examination findings. On remand, the examiner should fully describe the Veteran's radiculopathy symptoms as specifically directed in the remand directives below. 3. A total disability rating based on individual unemployability (a TDIU rating) due to service-connected disabilities is remanded. Because adjudication of the Veteran's increased rating claims for his low back disability may impact his TDIU claim, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims MUST be processed expeditiously. 2. Obtain any updated VA treatment records (and adequately identified private treatment records) for association with the claims file. 3. Then, schedule the Veteran for a VA examination to evaluate the severity of his service-connected low back disability. The Veteran's claims file, to include a copy of this remand, should be provided to the examiner. 4. The examiner is asked to assess the current severity of the Veteran’s diagnosed lumbar spine condition with IVDS. See e.g. January 2020 VA examination. 5. For the Veteran's right lower extremity radiculopathy, the examiner should fully describe the disabilities and report all signs and symptoms necessary for evaluation under DC 8520 (sciatic nerve impairment) or any other pertinent diagnostic codes for the right lower extremity). If there are no reported signs or symptoms of radiculopathy, the examiner MUST reconcile this finding with the Veteran's current diagnosis of right lower extremity radiculopathy. 6. The examiner is asked to provide a retrospective opinion regarding the functional loss IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS, associated due to flare-ups of the low back prior to January 9, 2020. The examiner should answer the following questions based on a review of the claims file and interview and examination of the Veteran. All necessary diagnostic testing should be performed. (a.) The examiner must describe all impairments of the Veteran's low back disabilities; make determinations regarding range of motion, including any additional functional impairment; and identify any related neurological symptoms. (b.) The examiner must test active and passive range of motion and provide weight-bearing and non-weight-bearing information. If pain is noted, the point in the range of motion at which pain starts MUST be clearly noted. (c.) The examiner must assess the additional functional impairment on repeated use or during flare-ups IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS, using lay observations specifically elicited from the Veteran. The point in the range of motion at which pain starts MUST be clearly noted. If this is not feasible, the examiner MUST provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the physician cannot provide an opinion without resorting to speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; by law, the Board CANNOT accept a rationale that the Veteran is not having a flare-up at the time of the examination to explain why range of motion values cannot be provided. If the Veteran is not having a flare-up during the examination, please work with the Veteran to estimate his functional loss (to include range of motion limitations) during flare-ups by describing and demonstrating typical flare-up symptoms (and measuring these demonstrations with a goniometer). If the examiner concludes an opinion cannot be provided without speculation, the rationale MUST show this inability is due to a lack of knowledge of the medical community at large and is not due to the examiner's own insufficient knowledge. (d.) In summary, the following six items MUST be described in degrees (1) active range of motion (2) passive range of motion (3) where the pain starts during active range of motion (4) where the pain starts during passive range of motion, (5) range of motion during flare-ups (which MUST be estimated if the examination is not conducted during a flare-up), and (6) where the pain starts during flare-ups. (e.) The examiner should also obtain an employment history (clearly distinguishing full time and part-time employment) from the Veteran and describe the effect of his service-connected disabilities on the Veteran's ability to obtain and maintain full-time employment in a position consistent with his education and experience. Note, being required to work with accommodations may not be considered substantial and gainful employment. Accordingly, the examiner is asked to elicit and document what accommodations the Veteran was afforded and when they were afforded. Also, the examiner is requested to elicit if the Veteran was required to take significant amounts of regular and sick leave and unscheduled or unpaid absences. A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.J. Smith, 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.