Citation Nr: 21021002 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 13-05 837 DATE: April 9, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent for lumbar degenerative disc disease status post decompression of L3-L4 and stabilization of L3 to L5 from May 29, 1997 to September 25, 2003, to exclude periods of convalescence is remanded. Entitlement to an initial evaluation in excess of 20 percent for lumbar degenerative disc disease status post decompression of L3-L4 and stabilization of L3 to L5 from September 25, 2003 to December 12, 2019, to exclude periods of convalescence is remanded. Entitlement to an initial evaluation in excess of 40 percent for lumbar degenerative disc disease status post decompression of L3-L5 and stabilization of L3 to L5 from December 12, 2019 is remanded. Entitlement to a total rating based on individual unemployability (TDIU) prior to November 17, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1984 to July 1987. A hearing was held before the undersigned Veterans Law Judge in September 2015. A transcript of that hearing is of record. In July 2016, the Board of Veterans’ Appeals (Board) denied entitlement to an initial evaluation greater than 10 percent for lumbar degenerative disc disease status post decompression of L3-L4 and stabilization of L3 to L5 from May 29, 1997 to September 25, 2003; denied entitlement to an evaluation greater than 20 percent disabling for the lumbar spine disability from September 26, 2003 to November 21, 2013; and remanded the issues of entitlement to a disability evaluation in excess of 20 percent for a lumbar spine disability since November 22, 2013 and entitlement to a TDIU for additional evidentiary development. The Veteran appealed the Board’s July 2016 to the Court of Appeals for Veterans Claims (Court). In February 2018, a Court order vacated the Board’s decision with respect to the two denied issues, and adopted a Joint Motion for Partial Remand (JMPR) for reconsideration of the Veteran’s claim. The Board previously remanded this case for additional development in August 2018 and in June 2020. The matter has now returned to the Board for appellate review. 1. Entitlement to an initial evaluation in excess of 10 percent for lumbar degenerative disc disease status post decompression of L3-L4 and stabilization of L3 to L5 from May 29, 1997 to September 25, 2003, to exclude periods of convalescence 2. Entitlement to an initial evaluation in excess of 20 percent for lumbar degenerative disc disease status post decompression of L3-L4 and stabilization of L3 to L5 from September 25, 2003 to December 12, 2019, to exclude periods of convalescence 3. Entitlement to an initial evaluation in excess of 40 percent for lumbar degenerative disc disease status post decompression of L3-L$ and stabilization of L3 to L5 from December 12, 2019 As noted above, in June 2020, the Board remanded the matter for additional development. In particular, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion from a VA orthopedic spine specialist. Further, the Board noted that if one was not able to be located in the relevant jurisdiction, efforts should be undertaken to locate the appropriate specialist throughout the entire VA medical system and arrange for said opinion. A review of the file reveals that, although an addendum opinion was obtained in January 2021, the specialty of the opining examiner is noted to be internal medicine, and not an orthopedic spine surgeon, as required from the June 2020 remand directives. Therefore, the Board finds that the January 2021 addendum opinion fails to substantially comply with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). Accordingly, to ensure compliance with the June 2020 remand directives, and to ensure that any decision rendered in the Veteran’s appeal is based on sufficient evidence, the Board finds that another addendum opinion must be obtained from a VA examiner with the indicated credentials. 4. Entitlement to a total rating based on individual unemployability (TDIU) prior to November 17, 2014 The Veteran’s claim of entitlement to an effective date prior to November 17, 2014, for a TDIU is impacted by the outcome of these increased rating claims, and therefore, is inextricably intertwined with these issues. All issues “inextricably intertwined” with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, the Board finds that the TDIU issue should be remanded to the AOJ. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a VA orthopedic spine specialist/surgeon to ascertain the severity and manifestations of the Veteran’s service-connected lumbar degenerative disc disease status post decompression of L3-L4 and stabilization of L3 to L5 for the period from May 29, 1997 to the present. The AOJ should undertake all efforts to find a VA orthopedic spine specialist/surgeon across the entire VA system if there is not one located in the relevant jurisdiction. The AOJ should document all efforts in its attempt to locate this specialist. The examiner is requested to review all pertinent records associated with the electronic claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. 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 comment as to all signs and symptoms necessary for rating the Veteran’s lumbar spine disability under the appropriate rating criteria, including the criteria in effect prior to September 23, 2002. In particular, the examiner should state the total duration of incapacitating episodes over the past 12 months and identify any/all neurological manifestations of the lumbar spine disability. The severity and symptomatology of the Veteran’s intervertebral disc syndrome (IVDS) should also be addressed for the period from May 27, 1997 to present. The examiner is advised that prior to September 23, 2002, under Diagnostic Code 5293 (intervertebral disc syndrome (IVDS)), a rating of 10 percent was warranted for mild symptoms. A rating of 20 percent was warranted for moderate impairment; recurring attacks. A rating of 40 percent was warranted for severe, recurring attacks with intermittent relief. A rating of 60 percent was warranted for pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001). This rating code is applicable to the Veteran’s IVDS from May 29, 1997 to the present (although separate neurological ratings of the lower extremity may affect use of this code). All evidence used in making this determination should be highlighted. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. All prior reports, including the May 2018 private opinion from Dr. D.M. and December 2019 VA addendum opinion should be addressed and/or reconciled, as necessary or possible. 2. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. The issue of entitlement to a TDIU for the period prior to November 17, 2014 should also be adjudicated. If a report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.