Citation Nr: 21014755 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 10-36 746 DATE: March 15, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to December 17, 2015, and in excess of 20 percent from December 17, 2015, is remanded. Entitlement to an initial rating in excess of 20 percent for benign prostatic hypertrophy prior to August 6, 2020, and in excess of 40 percent from August 6, 2020, is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from October 1977 to November 2007. These matters come before the Board of Veterans’ Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Veteran was provided a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims folder. In January 2021, the Veteran was advised that the VLJ who conducted his hearing is no longer employed by the Board in that capacity and was asked if he wanted a new hearing. The Veteran did not respond to the letter and the Board will assume that he does not want a hearing. In June 2017, the Board denied entitlement to higher initial ratings for degenerative disc disease of the lumbar spine and benign prostatic hypertrophy. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In April 2018, the Court granted the parties’ joint motion for partial remand, vacated the Board’s June 2017 decision with respect to the above issues and remanded the matters to the Board for action. In January 2019, the Board remanded the Veteran’s case for additional development and the case has been returned to the Board for review. A December 2017 rating decision granted a separate rating for right lower extremity radiculopathy, assigning a 10 percent disability rating effective May 20, 2009. The Board finds that the issue is part and parcel of the Veteran’s claim for a higher initial rating for degenerative disc disease of the lumbar spine. See Bierman v. Brown, 6 Vet. App. 125, 129-132 (1994) (holding that that neurological symptoms of the spine can warrant separate disability ratings under the diagnostic codes pertinent to rating neurological disorders). Accordingly, the issue is listed on appeal as shown on the title page of this decision. Concerning entitlement to a total disability based on individual unemployability (TDIU), the Board notes that the RO denied that issue in an August 2018 rating decision due to failure to return an application. However, the evidence does not reflect that the Veteran ever applied for TDIU or is unemployed. On multiple examinations during the appeal period, the Veteran reported that he worked as an information technologist. He has stated several times that he works 12 hour shifts with computers. Recently, during the August 2020 VA examination reports, the Veteran again confirmed his employment. Accordingly, the Board finds that the issue of entitlement to TDIU has not been reasonably raised and is not ripe for review. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to December 17, 2015, and in excess of 20 percent from December 17, 2015, is remanded. In January 2019, the Board remanded the issue of entitlement to a higher initial rating for degenerative disc disease of the lumbar spine to provide a new VA examination and retrospective opinion concerning the Veteran’s flare-ups and degree of functional impairment and loss for the entire appeal period beginning in November 2007. In August 2020, the Veteran was provided a VA examination. The examiner noted that the Veteran reported flare-ups described as muscle spasms. The Veteran explained that he had to lie down and prevent moving much. He reported that his flare-ups occurred two to three times per week of a moderate to severe severity and lasted less than 1 day. The Veteran also reported functional impairment and loss regardless of repetitive use. The examiner estimated the degree of range of motion loss during flare-ups and periods of repeated use. Concerning the Board’s question as to information regarding flare-ups and degree of functional impairment and loss from November 2007 to the present, the examiner directed the reader to the portion of the August 2020 VA examination report that discussed the Veteran’s reported flare-ups. The examiner noted that it was assumed that, due to the severity of the Veteran’s pain, range of motion would be further limited from its normal values during flare-ups. The Board finds that the opinion is not adequate. The examiner did not discuss any evidence dated prior to the August 2020 VA examination, it is not evident that information was solicited concerning the manifestations of the Veteran’s disability since November 2007, and the examiner did not indicate the degree of any functional impairment and loss, to include range of motion loss, during the portion of the appeal prior to the August 2020 VA examination. An additional VA examination and opinion is therefore required to comply with the Board’s remand. Entitlement to an initial rating in excess of 20 percent for benign prostatic hypertrophy prior to August 6, 2020, and in excess of 40 percent from August 6, 2020, is remanded. In January 2019, the Board remanded the Veteran’s claim to obtain a retrospective opinion as to the manifestations of the Veteran’s benign prostatic hypertrophy. The Board requested that the examiner assess the current severity and provide a retrospective opinion addressing the Veteran’s symptomatology of benign prostatic hypertrophy since November 2007. In part, the examiner was asked to opine whether the Veteran’s chronic epididymitis was either a symptom of the benign prostatic hypertrophy or caused or aggravated by the Veteran’s benign prostatic hypertrophy. In August 2020, the Veteran was provided a VA examination. Concerning a retrospective opinion, the examiner stated that the diagnosis of benign prostatic hypertrophy was histological with physicians utilizing a multi-faceted approach in evaluating men for possible benign prostatic hypertrophy. It was noted that early symptoms may be dismissed and as men age and testosterone levels fall, the prostate continues to grow resulting in worsening symptoms. The Board finds that this opinion is inadequate and does not comply with the Board’s remand. The examiner commented on benign prostatic hypertrophy in general, but not the evidence specific to the Veteran’s case. The examiner did not address the severity of the Veteran’s disability since November 2007. Further, the examiner was also asked to address epididymitis, which was found on examination in 2014. The examiner did not provide an opinion because that condition was not currently found on examination. However, because the condition was present during the appeal period, the examiner must still provide an opinion as to its etiology. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Because the ordered VA examination for the degenerative disc disease of the lumbar spine may contain findings related to the lower extremities, the Board must defer adjudication of the claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his degenerative disc disease of the lumbar spine. The examiner must note that the claims folder was reviewed and address the current manifestations of the Veteran’s disability. The examiner must address the following: a. Elicit information regarding the severity, frequency, and duration of flare-ups of any flare-ups of lumbar pain and the degree of functional loss during flare-ups for the entire period on appeal beginning November 2007. The examiner must indicate whether it is possible to estimate the degree of any additional range of motion loss during flare-ups or repeated use prior to the August 6, 2020, VA examination findings. b. Concerning the diagnosis of intervertebral disc syndrome, the examiner must address whether the Veteran has disc herniation with compression and/or irritation of the adjacent nerve root. A full and complete rationale must be provided for any opinion reached. 2. Return the claims folder to the August 2020 VA examiner, or, if unavailable, another suitably qualified examiner, to provide a retrospective opinion concerning the manifestations of the Veteran’s benign prostatic hypertrophy. If the examiner determines that another VA examination is required, an examination should be scheduled. The examiner must note that the claims folder was reviewed. The examiner must address the following: a. Provide a retrospective opinion concerning the symptomatology due to the Veteran’s benign prostatic hypertrophy since November 2007. b. Regardless of whether epididymitis was present on examination in August 2020, the examiner must state whether the Veteran’s epididymitis was either a symptom of the Veteran’s benign prostatic hypertrophy or whether it was caused or aggravated by the Veteran’s benign prostatic hypertrophy. A full and complete rationale must be provided for any opinion reached. 3. Thereafter, readjudicate the remanded issues, to include consideration of whether referral for extraschedular ratings is warranted. If the issues on appeal are still denied, return the matters to the Board for appellate review if otherwise in order. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.