Citation Nr: 21015847 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 07-18 122 DATE: March 18, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a back disability from May 29, 2003, to August 29, 2009, is remanded. Entitlement to a rating in excess of 40 percent for a back disability from August 30, 2009, to July 18, 2010, is remanded. Entitlement to a rating in excess of 20 percent for a back disability from July 19, 2010, is remanded. REASONS FOR REMAND The Veteran had active service with the United States Army from August 1994 to September 1996. This is a multifaceted situation. In June 2007 the Veteran testified at a Travel Board hearing held at the regional office (RO). A transcript of the hearing is of record. The Veterans Law Judge (VLJ) who conducted that hearing has since retired from the Board of Veterans’ Appeal (Board). In April 2012, the Board sent the Veteran a letter informing him of this and asking him if he wished to attend another hearing. In reply, the Veteran indicated that he wanted another hearing. In March 2012, the Veteran testified at a hearing before the undersigned VLJ and a transcript of that hearing is of record. These claims were previously denied in a December 2015 Board decision and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. Pursuant to a September 2016 Joint Motion for Partial Remand (JMPR), the Court issued an order vacating the Board’s December 2015 decision with respect to the issues discussed herein and remanded these issues to the Board for action consistent with the JMPR. In May 2017, the Board Remanded the appeal to obtain the development called for in the JMPR. In December 2019, the Board issued another decision that granted the Veteran a 20 percent rating for his back disability from May 29, 2003, to August 29, 2009, denied a rating in excess of 40 percent for his back disability from August 30, 2009, to July 18, 2010, and denied a rating in excess of 20 percent for his back disability from July 19, 2010. The Veteran appealed the December 2019 Board decision to the Court. In an October 2020 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the Board decision to the extent that it denied a rating in excess of 20 percent for the back disability from May 29, 2003, to August 29, 2009, denied a rating in excess of 40 percent for his back disability from August 30, 2009, to July 18, 2010, and denied a rating in excess of 20 percent for his back disability from July 19, 2010. Entitlement to higher initial ratings for a back disability from May 29, 2003, are remanded. Initially, the Board notes that the October 2020 JMR vacated and remanded the December 2019 decision because, in substance, it did not specifically address whether all of the Veteran’s outstanding and available private chiropractic records, including from 2008, had been obtained and associated with the claims file. However, from the existing record the Board is not able to answer this question. Therefore, the Board finds that another Remand is required to obtain and associate with the record all outstanding and available private chiropractic records, including from 2008, and/or a statement from the chiropractor and/or the Veteran that no other records are available. See 38 U.S.C. § 5103A(b); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). Next, the Board notes that the October 2020 JMR vacated and remanded the December 2019 decision because, in substance, it did not adequately address “whether a higher rating was warranted under the pre-2003 version of 38 C.F.R. § 4.71a, diagnostic code (DC) 5295… based on ‘loss of lateral motion with osteoarthritic changes’ or ‘narrowing or irregularity of joint space…” [with a discussion of the] … medical evidence relevant to that determination, to include a reference to a fracture of T11.” In this regard, the Board notes that given the Veteran’s May 29, 2003, date of claim the Veteran is potentially entitled to a rating in excess of 20 percent for his back disability for the entire time from May 29, 2003, inter alia, if he has a fracture of the vertebra with cord involvement requiring long leg braces or being bedridden (100 percent) or a fracture of the vertebra without cord involvement but leading to abnormal mobility requiring a neck brace (60 percent) (Diagnostic Code 5285); complete ankylosis of the spine at an unfavorable angle (100 percent) or complete ankylosis of the spine at a favorable angle (60 percent) (Diagnostic Code 5286); ankylosis of the lumbar spine at an favorable angle (40 percent) or ankylosis of the lumbar spine at an unfavorable angle (50 percent) (Diagnostic Code 5289); severe limitation in the range of motion of the lumbar spine (40 percent) (Diagnostic Code 5292); or lumbosacral strain with listing of the whole spine to opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion (40 percent) (Diagnostic Code 5295). 38 C.F.R. § 4.71a (2002). Moreover, with a demonstrable vertebral deformity due to a service connected fracture, a 10 percent rating may be added to the Veteran’s rating (Diagnostic Code 5285). Id. Likewise, the Board notes that given the Veteran’s date of claim he is potentially entitled to a rating in excess of 20 percent for his back disability for the entire time from May 29, 2003, if, inter alia, it is manifested by problems compatible with intervertebral disc syndrome with incapacitating episodes having a total duration of at least four week but less than six weeks during the past twelve months (40 percent) or if it’s manifested by problems compatible with intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past twelve months (60 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2003). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. Similarly, the Board notes that given the Veteran’s May 29, 2003, date of claim he is potentially entitled to a rating in excess of 20 percent for his back disability effective September 26, 2003, if, inter alia, his back disability is manifested by forward flexion of the thoracolumbar spine 30 degrees or favorable ankylosis of the entire thoracolumbar spine (40 percent); unfavorable ankylosis of the entire thoracolumbar spine (50 percent); or unfavorable ankylosis of the entire spine (100 percent). 38 C.F.R. § 4.71a (2004). The Board also notes that since this appeal was last before the Board, VA has again amended parts of the musculoskeletal rating criteria found at 38 C.F.R. § 4.71a to include how it rates back disabilities. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Given the above, the Board finds that a Remand is also required to provide the Veteran with another VA examination to ascertain the severity of his back disability under each of the above criteria that have been in place for rating back disabilities since May 29, 2003. See 38 U.S.C. § 5103A(d). Given the above, the Board finds that a Remand is also required for the RO to provide the appellant with a new supplemental statement of the case (SSOC) that provides the Veteran with notice of the new criteria for rating musculoskeletal back disabilities under 38 C.F.R. § 4.71a that became effective in February 2021 as well as for it to rate the back disability under each of the criteria that have been in place for rating back disabilities since May 29, 2003. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued); Also see 38 C.F.R. § 4.71a (2002); 38 C.F.R. § 4.71a (2003); 38 C.F.R. § 4.71a (2004); 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). In this regard, when rating the Veteran’s back disability VA may only apply the rating criteria for the disability from the effective date of the change in the Diagnostic Code. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The appeal is REMANDED for the following actions: 1. In order to comply with the JMPR and JMR, while the appeal is in Remand status the Veteran and his representative should be asked to identify any missing records from the Veteran’s chiropractor and help VA obtain the records because the Board cannot tell from the record which, if any, records it does not have. If the Veteran and his representative believe that the Board has all the chiropractor records, they should notify VA of this fact. If the Veteran and his representative believe that the Board does not have all the chiropractor records, after obtaining an authorization, the RO should obtain and associate with the record all outstanding and available private chiropractic records, including from 2008. If no other records are available from the chiropractor, the chiropractor should say so. 2. In order to comply with the JMPR and JMR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his back disability since May 29, 2003. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: (a) The examiner should identify all back pathology found to be present since May 29, 2003. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. (c) In order to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), the joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) In order to comply with the Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner should also state whether the examination is taking place during a period of flare-up. If the examination is taking place during a flare-up, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If the examination is NOT taking place during a flare-up, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited back flexion, extension, side to side, and rotation caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot provide the range of motion estimate during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If the examiner cannot provide the range of motion estimate during flare-ups without resorting to speculation because of a deficiency in the record or the examiner, all appropriate steps should be taken to correct the deficiency. (e) The examiner should also state the number of weeks of incapacitating episodes caused by the back disability in each 12-month period during the pendency of the appeal. (f) The examiner should state the nature, extent, and severity of any loss of sphincter and bladder control caused by the service-connected disability. (g) The examiner should state if the Veteran has a fracture of the vertebra with cord involvement requiring long leg braces or being bedridden; a fracture of the vertebra without cord involvement but leading to abnormal mobility requiring a neck brace; a demonstrable vertebral deformity; ankylosis; and/or listing of the whole spine to opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, abnormal mobility on forced motion. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. In order to comply with the JMPR and JMR, in providing the opinions the examiner should consider and discuss the significance, if any, of the reference to a fracture of T11. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After undertaking the above development, the RO should issue the appellant a SSOC that, among other things, provides notice of the new February 2021 criteria for rating musculoskeletal back disabilities under 38 C.F.R. § 4.71a and rates his back disability under each of the criteria that have been in place for rating back disabilities since May 29, 2003. See 38 C.F.R. § 4.71a (2002); 38 C.F.R. § 4.71a (2003); 38 C.F.R. § 4.71a (2004); 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). In this regard, the SSOC may only apply the rating criteria for the Veteran’s back disability from the effective date of the change in the Diagnostic Code. See Kuzma, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.