Citation Nr: 21026248 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-16 644 DATE: April 30, 2021 REMANDED A disability rating higher than 10 percent prior to August 07, 2020, and higher than 20 percent thereafter for degenerative disc disease of the lumbar spine is remanded. An initial disability rating higher than 10 percent for left lower extremity radiculopathy -femoral nerve, is remanded. An initial disability rating higher than 10 percent for right lower extremity radiculopathy -femoral nerve, is remanded. An initial disability rating higher than 10 percent for left lower extremity radiculopathy -external cutaneous nerve, is remanded. An initial disability rating higher than 10 percent for right lower extremity radiculopathy -external cutaneous nerve, is remanded. An initial disability rating higher than 70 percent for posttraumatic stress disorder (PTSD) (previously claimed as depression and as a mental health condition) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 2003 to January 2007, and from March 2008 to January 2015. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a VA Regional Office (RO). In March 2019, the Veteran testified at a Travel Board hearing. In November 2020, the Board notified the Veteran that the March 2019 presiding judge was no longer with the Board and offered the Veteran a new Board Hearing. The Veteran has not requested another hearing. In a decision dated in August 2019, the Board increased the rating for the Veteran’s PTSD to 70 percent and fully and favorably resolved the issue of TDIU. The Board then remanded the issues of a rating higher than 70 percent for PTSD, a higher rating for lumbar degenerative disc disease, and higher initial ratings for the service-connected left and right lower extremity radiculopathy for further development. The requested development has been completed; however, further development is warranted. 1. A disability rating higher than 10 percent prior to August 07, 2020, and higher than 20 percent thereafter for degenerative disc disease of the lumbar spine is remanded. The Veteran’s spine rating was previously remanded by the Board in August 2019 to afford the Veteran a new spine examination, in part, in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the examiner was directed to test range of motion on active and passive motion, as well as in weight-bearing and nonweight-bearing. If such testing could not be completed or was found not necessary, the examiner was directed to clearly explain why that is so. Unfortunately, the resulting August 2020 VA examination did not provide all the necessary range of motion testing that was requested in the Board’s prior remand. Specifically, the examiner noted pain on weight-bearing, but not a specific range of motion in weight-bearing position despite being asked to provide such information or specify why such testing was not completed. For the sake of clarity, and to ensure compliance with Correia, the Board finds an addendum opinion is prudent. Additionally, since that time, the Court in Chavis v. McDonough, has since held that ankylosis may be established if the Veteran’s range of motion is, in essence, functionally ankylosed. See Chavis, U.S. Court of Appeals for Vet. Claims No. 18-2928 (decided April 16, 2021). The Veteran has complained of stiffness of the joint and, therefore, a new examination is further warranted to assess whether the Veteran’s lumbar stiffness amounts to the functional equivalent of ankylosis (i.e., functional immobility of the joint). Id. As an aside, the Board notes that a February 2019 primary care record indicates the Veteran was recently referred to a chiropractic provider for back pain. It is unclear whether the Veteran followed-up on this and pursued chiropractic treatment, but since it is necessary to remand this claim for a new VA examination, the RO should make efforts to obtain any chiropractic treatment records, to the extent they exist. 2. An initial disability rating higher than 10 percent for left lower extremity radiculopathy -femoral nerve, is remanded. 3. An initial disability rating higher than 10 percent for right lower extremity radiculopathy -femoral nerve, is remanded. 4. An initial disability rating higher than 10 percent for left lower extremity radiculopathy -external cutaneous nerve, is remanded. 5. An initial disability rating higher than 10 percent for right lower extremity radiculopathy -external cutaneous nerve, is remanded. In a rating decision dated in November 2016, the RO granted service connection for left and right lower extremity femoral nerve radiculopathy and left and right lower extremity external cutaneous nerve radiculopathy with a rating of 10 percent, each, effective August 25, 2016. The Veteran has appealed for a higher initial rating. In August 2020, the Veteran was afforded a VA examination. EMG/NCV testing was not done in conjunction with that examination. During the examination the Veteran stated that he “ has no feeling in both legs ” from the thighs to the knees. He described his symptoms as “tingling, stinging (pain) and burning and numbness to the touch,” and maintained that he could stab or burn himself and not know it. He stated that the symptoms are “severe all the time.” He added that medications did not work for his symptoms, and that he felt like his skin is dying. The examiner assessed the Veteran as with “ severe ” right and left lower extremity paresthesias and/or dysesthesias and numbness of the anterior crural (femoral) and external cutaneous nerves, but then categorized the radiculopathy as “mild.” In view of the seeming inconsistency between the examiner’s description of the symptoms as “severe” and the examiner’s subsequent designation of the radiculopathy as “mild,” the Veteran should be afforded a new examination, to include EMG/NCV testing. See 38 C.F.R. § 3.327, which provides for reexaminations if evidence indicates that the current rating may be incorrect. 6. An initial disability rating higher than 70 percent for PTSD is remanded. In a rating decision dated in April 2015, the RO granted service connection for PTSD with a rating of 10 percent effective January 9, 2015. The Veteran timely appealed for a higher initial rating. In a rating decision dated in March 2016, the RO increased the rating for PTSD from 10 percent to 50 percent effective January 9, 2015. In a decision dated in August 2019, the Board increased the rating for the Veteran’s PTSD to 70 percent for the entire appeal period; and remanded the issue of a rating higher than 70 percent for PTSD. The Board specifically instructed the RO to “Adjudicate the issue of entitlement to a disability rating higher than 70 percent, for the entire appeal period, after taking into consideration the July 2019 VA examination of the Veteran’s PTSD.” In a July 2020 rating decision, the RO effectuated the 70 rating with an effective date of January 9, 2015. In August 2020, the RO readjudicated the PTSD rating and issued a Supplemental Statement of the Case. Even so, the Board concludes a fair adjudication of this claim cannot be completed at this time. The Veteran was most recently afforded a VA examination in connection with his PTSD in July 2019. At that time, the examiner opined that the Veteran’s responses “resulted in an INVALID profile” due to “overreporting” symptoms and symptoms “rarely described by individual with genuine, severe psychopathology….” The examiner outlined serious concerns with the credibility of the Veteran’s reported symptomatology. In order to determine the correct disability rating of the Veteran’s disability, the Board must have an accurate understanding of the Veteran’s symptomatology. Thus, the Board will remand the issue to afford the Veteran a new VA examination. It is important at this time, however, to stress to the Veteran that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has an obligation to cooperate in the development of evidence pertaining to his claim, to include credibly reporting the symptomatology of his disability. Tyrues v. Shinseki, 23 Vet. App. 166, 181 (2009). The matters are REMANDED for the following action: 1. Regarding the chiropractic intervention referenced by the VA primary care provider in February 2019, associate the ensuing chiropractic treatment records with the claims file, to the extent they exist. Document all efforts to obtain these records. 2. After the completion of step 1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, with weight-bearing, and without weight-bearing. If the examiner is unable to conduct the required testing in any of the requested categories (active motion, passive motion, weight-bearing, non-weight-bearing) or deems it not necessary in this case, the examiner should clearly explain why that is so. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is further asked to state whether the Veteran’s lumbar stiffness constitutes the functional equivalent of ankylosis. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran’s service-connected bilateral lower extremity radiculopathy. The examiner should provide a full description of the radiculopathy and report all signs and symptoms necessary for evaluating the Veteran’s radiculopathy under the rating criteria. EMG/NCV testing should be done. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran’s service-connected PTSD disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the Veteran’s service-connected PTSD alone. 5. After completion of the above directives and any other necessary action, re-adjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Childers, 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.