Citation Nr: 21024991 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 09-33 303 DATE: April 27, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent from August 6, 2006, to June 9, 2013, and from August 1, 2013, to July 21, 2015, for a cervical spine disability is remanded. Entitlement to a disability rating in excess of 20 percent from August 6, 2006, to February 11, 2008, and from April 1, 2008, to August 25, 2015, for a thoracolumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected conditions (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1974 to May 1994. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of background, these matters were most recently before the Board in April 2020. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Affairs (CAVC or “the Court”). In December 2020, the Court granted a December 2020 Joint Motion for Partial Remand (JMPR) vacating this part of the Board’s decision and remanding the claim for further development. Thus, the matters have returned to the Board for further consideration consistent with the December 2020 JMPR. Preliminary matters The Board notes these claims stem from an increased rating claim received on August 6, 2007. In the January 2008 rating decision on appeal, the RO continued a 20 percent disability rating for degenerative disc disease of the thoracolumbar spine and continued a noncompensable rating for degenerative changes of the cervical spine. The Veteran timely appealed the cervical spine and lumbar spine claims in August 2008. Since then, these claims have continued through a significant procedural history including Board decisions in January 2013, October 2015, September 2016, July 2017, and April 2020 as well as the December 2020 JMPR. During the pendency of these claims, the RO granted a separate rating for left lower extremity radiculopathy in an April 2013 rating decision. The RO granted a separate rating for left upper extremity radiculopathy in a February 2019 rating decision while denying right upper extremity radiculopathy in the same decision. Then in a January 2021 rating decision, the RO granted a separate rating for right upper extremity radiculopathy. The Veteran did not appeal these specific ratings including the February 2019 rating decision which denied right upper extremity radiculopathy. Additionally, neither the Board nor the parties’ JMPR included the Veteran’s separately rated radiculopathies. Thus, the Board finds the Veteran was on notice that the radiculopathy ratings assigned during the pendency of these claims were not on appeal. Indeed, neither the Veteran nor her representative have raised the issue of an increased rating for the Veteran’s separately assigned radiculopathy ratings. Further, the Board has never taken jurisdiction of these issues nor were they presented before the Court as part of the December 2020 JMPR. The Board notes that under Chavis, the Court has acknowledged that under certain circumstances, the Board has jurisdiction over separate neurological ratings awarded during the adjudication of an increased rating claim for the spine without the need of the claimant filing a specific notice of disagreement (NOD) for the separately awarded neurological ratings. Chavis v. McDonough, U.S. Court of Appeals for Vet. Claims No. 18-2928 (decided April 16, 2021). The Board finds the facts here distinguishable as outlined above and, therefore, declines taking jurisdiction. Significantly, as explained, the Veteran was on notice that these issues were not on appeal to the Board throughout the significant procedural history including multiple Board decisions and a JMPR before the Court during which radiculopathy ratings already assigned were not mentioned. The Board finds particularly significant that the Veteran had the opportunity at the time of the December 2020 JMPR to claim “error” with the Board’s prior April 2020 adjudication of this claim by not taking jurisdiction of the neurological ratings awarded throughout time, but no such “error” was identified. Thus, it must be concluded that the Veteran is not disputing this aspect of the April 2020 Board decision, namely the Board’s decision not to assume jurisdiction of such ratings. For this important reason, the matter is clearly distinguishable from the procedural history in Chavis. Thus, these ratings will not be addressed in the context of this appeal, but rather the Board will only consider whether there are any other neurological manifestations that ought to be separately rated. As part of the parties’ December 2020 JMPR, the Board was directed to clarify the periods on appeal. The Veteran was granted service connection for degenerative disc disease of the lumbosacral spine and degenerative changes of the cervical and thoracic spine in a June 1994 rating decision. The Veteran did not appeal the June 1994 rating decision or submit additional evidence within a year. Thus, the June 1994 rating decision became final. The Veteran filed an increased rating claim for these claims on August 6, 2007. Thus, the Board will consider the period on appeal as early as one year prior to her increased rating claim to the extent an increase was factually ascertainable during that timeframe. See 38 C.F.R. § 3.400(o)(2). The Board also notes these claims are currently pending before the RO for the remaining time periods originally appealed. Should the claims remain on appeal following the RO’s decision, these appeal streams shall be merged. 1. Entitlement to a disability rating in excess of 10 percent from August 6, 2006, to June 9, 2013, and from August 1, 2013, to July 21, 2015, for a cervical spine disability is remanded. 2. Entitlement to a disability rating in excess of 20 percent from August 6, 2006, to February 11, 2008, and from April 1, 2008, to August 25, 2015, for a thoracolumbar spine disability is remanded. The Veteran contends her symptoms of cervical spine and thoracolumbar spine disabilities entitle her to a higher disability rating. The Board finds the evidence is insufficient to resolve her claims. Of relevance to the periods on appeal addressed in this decision, the Veteran underwent VA examinations to determine the severity of her cervical spine and thoracolumbar spine disabilities in March 2013. Regarding the thoracolumbar spine, the examiner indicated flare-ups involved increased pain precipitated and aggravated by sitting, standing, walking, driving, or any activity that puts pressure on the back. Regarding the cervical spine, the examiner found that the Veteran experienced flare-ups in the form of constant pain that produced a grinding sensation when aggravated by prolonged sitting, driving, or turning the head. The examiner opined, however, that loss of function due to flare-ups could not be determined without resorting to mere speculation. In the December 2020 JMPR, the parties agreed that the March 2013 VA examinations were inadequate because they did not provide sufficient information detailing the Veteran’s functional impairment or range of motion (ROM) loss during flare-ups, as required by Sharp v. Shulkin, 29 Vet. App. 26 (2017). In the December 2020 JMPR, the Board was directed to reexamine the evidence of record and seek any other evidence the Board feels is necessary. In that regard, the March 2013 VA examiner noted the Veteran’s contention that her work has a merchandiser requires her to do “repetitive hand extension” motions that aggravate her neck and back pain, causing flare-ups. The examiner, however, could not estimate a specific degree of loss of motion without resorting to mere speculation. While a speculation opinion is not necessarily inadequate, the Court in Sharp held that an examiner is required to attempt to elicit information from the Veteran and the medical record to ascertain the degree of functional loss during flare-ups before concluding no such estimate can be provided. See Sharp, 29 Vet. App. at 34. There is no indication that the March 2013 VA examiner attempted to elicit such information from the Veteran and/or medical evidence nor is there an adequate rationale to explain why such an estimate would require mere speculation. As such, the Board finds a retrospective medical addendum opinion is necessary in accordance with Sharp and in compliance with the terms of the December 2020 JMPR. Indeed, medical evidence is lacking regarding the Veteran’s functional loss during flare-ups at all relevant time periods. Thus, remand is necessary to obtain retrospective addendum medical opinions addressing the impact of reported flare-ups in terms of functional loss and additional ROM loss due to the Veteran’s cervical spine disability from August 6, 2006, to June 9, 2013, and from August 1, 2013, to July 21, 2015, and the Veteran’s thoracolumbar spine disability from August 6, 2006, to February 11, 2008, and from April 1, 2008, to August 25, 2015. 3. Entitlement to TDIU is remanded. Pursuant to the Board’s July 2017 decision, entitlement to TDIU was inferred from the record and remanded for further development under Rice v. Shinseki, 22 Vet. App. 447 (2009). In accordance with the Board’s July 2017 remand directives, the RO notified the Veteran of the information needed to develop the TDIU claim in July 2018 and February 2019 letters, to include requesting the Veteran to complete a VA Form 21-8940. Although the Veteran continues to submit statements indicating she is unemployable, she has not returned the VA Form 21-8940, which would provide VA the necessary information of her education and past employment necessary to process the TDIU claim. Instead, her representative, in a February 2021 letter, merely indicated that she does not need to file a separate claim, that her TDIU entitlement should be considered as part and parcel of her increased rating claim on appeal, citing Rice, 22 Vet. App. 447. Again, the Board is presuming jurisdiction of the issue of TDIU as part and parcel of the increased rating claims on appeal. At the same time, the Veteran is informed that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Since it is necessary to remand these matters again, the RO should once again attempt to elicit the necessary development from the Veteran regarding the TDIU claim, to include the VA Form 21-8940, and process the TDIU claim appropriately. The Board again asserts for clarity that it continues to find TDIU reasonably raised as part and parcel of the increased ratings on appeal here and, therefore, the issue is inextricably intertwined with the development and adjudication of the spine issues being remanded here. 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 cannot be rendered unless both issues have been considered). However, further development is necessary to properly develop the claim and the Veteran has an obligation to cooperate in the development of her claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 181 (2009). The matters are REMANDED for the following action: 1. Once again undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU. This should include sending the Veteran a letter advising her of the information and evidence needed to award a TDIU and informing her that she must complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim for a TDIU. The Veteran must be made aware that she has an obligation to cooperate in the development of evidence as it pertains to her TDIU claim by returning the evidence requested, to include the VA Form 21-8940. 2. Return the entire claims file and this remand to an appropriate examiner for review. The necessity of an in-person examination is left to the discretion of the examiner. The examiner shall provide a retrospective opinion, including rationale, answering the following: (a.) From August 6, 2006, to June 9, 2013, and from August 1, 2013, to July 21, 2015, in consideration of the Veteran’s indicated cervical spine flare-ups reported in the March 2013 VA examination and any other medical evidence the examiner finds relevant to review in the claims folder, the examiner shall provide a retrospective opinion regarding the frequency and duration of any flare-ups. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. The examiner shall describe any additional functional impairment and/or functional loss in connection with the flare-ups in terms of the degree of additional range of motion loss. If it is not feasible to determine, even by estimation, the extent to which the Veteran experienced additional functional loss during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. Attention is invited especially, but not exclusively, to the March 2013 VA examination for the cervical spine as to whether additional functional loss is caused by flare-ups from August 6, 2006, to June 9, 2013, and from August 1, 2013, to July 21, 2015. (b.) From August 6, 2006, to February 11, 2008, and from April 1, 2008, to August 25, 2015, in consideration of the Veteran’s indicated thoracolumbar spine flare-ups reported in the March 2013 VA examination, the examiner shall provide a retrospective opinion regarding the frequency and duration of any flare-ups. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. The examiner shall describe any additional functional impairment and/or functional loss in connection with the flare-ups in terms of the degree of additional range of motion loss. If it is not feasible to determine, even by estimation, the extent to which the Veteran experienced additional functional loss during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. Attention is invited especially, but not exclusively, to the March 2013 VA examination for the thoracolumbar spine as to whether additional functional loss is caused by flare-ups from August 6, 2006, to February 11, 2008, and from April 1, 2008, to August 25, 2015. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined TDIU issue. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.