Citation Nr: 21027339 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-53 964 DATE: May 5, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent prior to August 14, 2020, and in excess of 40 percent thereafter for low back disability is remanded. Entitlement to a separate compensable rating prior to March 4, 2020, and in excess of 20 percent thereafter for right lower extremity radiculopathy is remanded. Entitlement to a separate compensable rating prior to August 14, 2020, and in excess of 20 percent thereafter for left lower extremity radiculopathy is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2007 to May 2007. This matter comes before the Board of Veteran's Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran presented testimony before the Board. In March 2020, the Board determined the Veteran raised a claim for TDIU as part and parcel of the rating issue for the low back disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then remanded both issues for further development. In June 2020, the RO awarded a separate 20 percent rating for right lower extremity radiculopathy effective March 4, 2020. In August 2020, the RO awarded a separate 20 percent evaluation for left lower extremity radiculopathy effective August 14, 2020. The Board has taken jurisdiction of the issues pertaining to bilateral lower extremity radiculopathy as they are part and parcel of the claim for increased evaluation for the low back disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. In August 2020, the RO also awarded an increased 40 percent rating for the low back disability effective from August 14, 2020. As less than the maximum benefit was awarded for a portion of the appeal, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes the Veteran filed VA Form 20-0995, Supplemental Claim Application, seeking review of the TDIU claim. While the RO readjudicated the claim for TDIU in March 2021 and continued the current ratings for the low back and bilateral lower extremity radiculopathy, he did not withdraw his Board appeal. Thus, this remains the valid appeal. See 38 C.F.R. § 3.2500(e). All issues are remanded As indicated above, in March 2020, the Board remanded the claims for increased rating for low back disability and entitlement to TDIU. In pertinent part, the Veteran was to be afforded an examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016), and to determine the current severity of his low back disability, to include whether there was any form of ankylosis, the total duration of any incapacitating episodes of intervertebral disc syndrome, to identify neurological manifestations of the low back disability, and to comment on the Veteran's ability to function in an occupational environment. The requested examination was conducted in August 2020. The Board notes another back examination was conducted in February 2021. On testing of the lumbar spine in both examinations, the examiner noted pain on examination that causes functional loss in forward flexion, extension, and bilateral lateral flexion and rotation; however, the examiner failed to specify at which point pain began during range of motion testing. In conducting these measurements, the examiner should note not only whether pain on motion is present, but if present, where in the range of motion the pain sets in and whether that pain causes functional loss. Accordingly, the examination findings are not adequate for a contemporaneous rating since the Board cannot properly assess functional impairment which is done with consideration of pain. Knowing where pain sets in is particularly important in this case where functional impairment has been noted. Correia, supra. Moreover, recently the United States Court of Appeals for Veterans Claims (CAVC) issued a decision in Chavis v. McDonough, No. 18-2928 (April 16, 2021), and found that when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. See also 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40, 4.45 are for application when evaluating joint disabilities and their manifestations, which may include ankylosis. These sections direct adjudicators to determine whether the joint demonstrates less movement than normal and ankylosis is specifically identified among the possible causes of less movement. Moreover, § 4.40 provides that "functional loss may be due to...pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion." Accordingly, the CAVC in Chavis found that the application of 38 C.F.R. §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis. Therefore, the examinations are also inadequate to determine whether the Veteran's low back disability may be entitled to a higher evaluation for ankylosis, or the functional equivalent thereof, due to the inability to perform normal working movements of the body, including as due to pain. Thus, further examination is necessary. 38 C.F.R. § 3.159(c)(4). The claims pertaining to radiculopathy of the bilateral lower extremities are deferred pending the additional development. Because a decision on the issues of increased ratings for the lumbar spine and radiculopathy could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined, and a remand is required. Finally, additional VA treatment records and VA examinations reports dated in February 2021 have been associated with the claims file since the August 2020 supplemental statement of the case (SSOC). Although the Veteran's substantive appeal was filed after February 2, 2013, these records were obtained by VA rather than the Veteran. Therefore, there is no automatic waiver of AOJ review and remand for AOJ consideration in the first instance is required. 38 C.F.R. §§ 19.31, 20.1304(c). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current level of severity of the low back disability on appeal. The claims folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. A) The examiner is asked specifically to provide range of motion testing (ROM) for the lumbar spine for active motion, passive motion, in both weight-bearing, and nonweight-bearing. B) In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use; and, identify at the point where pain starts. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM, to include noting the exact point at which pain starts. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. C) In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ROM testing, if pain is noted, the exact point at which pain is first noted must be specified. D) The examiner must review the claims file and elicit information regarding the severity, frequency, and duration of all symptoms during flare-ups and repeated use over time, and the degree of functional loss during flare-ups and/or repeated used over time. If possible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran unless deemed to lack credibility or be inconsistent with other evidence such as test results. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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. E) The examiner should also comment on whether there is any form of ankylosis. In addition, the examiner should state the total duration of incapacitating episodes of intervertebral disc syndrome over the past 12 months and identify all neurological manifestations of the disability. F) Finally, to the extent possible, the examiner should identify any symptoms and functional impairments due to the low back disability and discuss the effect on any occupational functioning and activities of daily living. 2. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.