Citation Nr: 21027461 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 20-24 388 DATE: May 5, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent prior to December 1, 2020, and in excess of 40 percent thereafter for lumbar degenerative disc disease is remanded. Entitlement to an initial rating in excess of 10 percent prior to July 11, 2016, a rating in excess of 20 percent from July 11, 2016, to December 1, 2020, and a rating in excess of 40 percent thereafter for left lower leg radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent prior to December 1, 2020, and in excess of 40 percent thereafter for right lower leg radiculopathy is remanded. Entitlement to special monthly compensation based on the need for regular aid and attendance and/or being housebound is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from February 1957 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2020 rating decision, the RO awarded increased ratings for the Veteran's low back disability and bilateral lower extremity radiculopathy. As these evaluations were less than the maximum benefit allowed under VA law and regulations, the claims for increased ratings remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The appeal previously included a claim for a total disability rating based on individual unemployability (TDIU). In a January 2021 rating decision, the RO granted TDIU for the entire appeal period. As this award represented a full grant of the benefits sought on appeal, the claim is no longer before the Board. However, the evidence of record also raises the issue of entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance and/or being housebound. In accordance with AB, entitlement to SMC is also on appeal. Id.; Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). This appeal has been advanced on the Board's docket pursuant. 38 U.S.C. § 7107(a)(2). The Board notes that a docketing letter was sent to the Veteran and his representative in April 2021. However, the letter was sent to the Veteran's old address. The Veteran's attorney was issued a copy. As the claims are being remanded, the Veteran and his attorney will have another opportunity to provide argument. As such, the Board finds no prejudice in proceeding with a decision at this time. 1. Increased ratings. The Veteran seeks higher ratings for his service-connected low back disability and bilateral lower extremity radiculopathy. While the Board regrets further delay, it finds that additional development is needed prior to adjudication. There may be outstanding, relevant private treatment records. In an October 2017 private treatment record, it was indicated that the Veteran previously received treatment for his low back and radiculopathy from Dr. U. See also August 2016 private opinion (referencing a September 2015 treatment record from Dr. U.) However, no records from Dr. U. are of record. Additionally, the evidence of record indicates that the Veteran may receive care for his low back and lower extremity radiculopathy from a private primary care provider, Dr. P. See March 2020 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (completed by Dr. P.); November 2020 VA treatment record. Again, no records from Dr. P. are of record. Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. The Veteran's claims for increased ratings as a result of radiculopathy of the bilateral lower extremities will be deferred pending receipt of the aforementioned outstanding medical reports. Additionally, the Veteran underwent VA examinations for his low back disability in September 2012 and July 2016. However, the Board finds that the examinations are not compliant with the holdings of Correia v. McDonald, 28 Vet. App. 158 (2016) or Sharp v. Shulkin, 29 Vet. App. 26 (2017). With regards to the September 2012 examination, while the Veteran reported flare-ups of his low back, the examiner did not elicit information regarding additional functional loss during flare-ups, such as the severity, duration, and frequency of the flares, nor did he estimate additional functional loss during flares. The examination also did not include the testing required by Correia. Regarding the July 2016 VA examination, the Veteran again reported flare-ups and the examiner failed to elicit information regarding additional functional loss during flare-ups, reporting instead that it would be mere speculation to offer an opinion since the Veteran was not experiencing a flare-up at the examination. A similar opinion was provided for additional functional loss following repeated use over a period of time. Moreover, while the examiner noted that there was pain with weightbearing, he did not address whether there was pain with active motion, passive motion, or in nonweight-bearing. In light of the foregoing deficiencies, the Board finds that a retrospective medical opinion addressing the functional loss during flare-ups and with repeated use over time as well as the inquiries mandated in Correia should be provided. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that the duty to assist may include obtaining a retrospective medical opinion to fill in gaps in the medical evidence of record). While the Board acknowledges that the most recent December 2020 VA fee-based examination is compliant with the holdings of Sharp and Correia, there is nothing in the record to indicate that the discussion of functional loss contained in the December 2020 VA examination report is representative of the Veteran's functional loss throughout the entire appeal period which spans more than ten years. The symptoms described by the Veteran during the various VA examinations over the appeal period and the range of motion testing recorded on those examinations indicate his condition has not been static. Thus, it would not be appropriate to rate the Veteran's low back disability based on the December 2020 VA examination for the entire period on appeal. It is also noted that in a recent decision the United States Court of Appeals for Veterans Claims (Court) held 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. Chavis v. McDonough, No. 18-2928 (April 16, 2021); 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). Consideration in this regard is warranted. 2. Entitlement to special monthly compensation based on the need for regular aid and attendance and/or being housebound. The record shows that the issue of entitlement to special monthly compensation (SMC) based on the need for aid and attendance and/or being housebound has been raised in conjunction with the Veteran's increased rating claims for his low back and bilateral lower extremity radiculopathy. See March 2020 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA 21-2680). In a September 2020 rating decision, the RO denied the claim for SMC for aid and attendance. As noted above, the issue of entitlement to SMC is part and parcel of a claim for increased rating. AB., Buie, Bradley, supra. See also Akles v. Derwinski, 1 Vet. App. 118 (1991) (supports the inference that as long as an increased rating claim remains pending, the SMC issue remains pending). Thus, though the Veteran has not yet appealed the September 2020 rating decision, entitlement to SMC based on the need for aid and attendance/housebound must still be considered in conjunction with the claims for increased compensation on appeal. As noted above, the Veteran submitted a VA 21-2680 from his private treating physician. However, when completing the examination, the physician considered a number of nonservice-connected disabilities, including chronic obstructive pulmonary disease (COPD), coronary artery disease, and congestive heart failure, and indicated that service-connected as well as nonservice-connected disabilities restricted the Veteran's activities. A review of the record shows that the Veteran has not been afforded a VA examination to determine whether he requires the need for regular aid and attendance of another person or is housebound due solely to his service-connected disabilities. Accordingly, the Board finds that a remand is necessary to provide the Veteran with such an examination. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. P. and Dr. U. Make two requests for the authorized records from aforementioned providers, unless it is clear after the first request that a second request would be futile. 2. Obtain a retrospective opinion on functional loss experienced during flare-ups and on the measurements required by Correia. The examiner must review the entire claims file, to include a copy of this REMAND. The need for a clinical examination is left to the examiner's discretion. a) The examiner is asked to express a retrospective opinion on functional loss during flare-ups for the low back for the period prior to December 1, 2020. In doing so, the examiner should answer whether pain, weakness, fatigability, or incoordination would have caused additional functional impairment during flare-ups or with repeated use over a period of time. The examiner should assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. The examiner also is advised that the Veteran reported flare-ups of the low back during his September 2012 and July 2016 VA examinations. As the opinion the examiner must provide is a retrospective opinion, the examiner will necessarily be unable to observe the Veteran during a flare-up. Nonetheless, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of flares' functional loss manifestations. The examiner should consider the lay descriptions in formulating the opinion. b) The examiner should provide an opinion as to the range of motion prior to December 1, 2020 of the low back in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. c) The examiner should also provide an opinion as to whether at any time during the period on appeal, the Veteran's functional loss was consistent with that contemplated by ankylosis. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. 3. Schedule the Veteran for a VA aid and attendance examination. The claims file, including a copy of this remand, must be made available for the examiner to review. All relevant tests and studies should be undertaken. The examiner should describe the extent to which the functional impairment due solely to the Veteran's service-connected disabilities (lumbar degenerative disc disease, bilateral lower extremity radiculopathy, chronic prostatitis, bilateral hearing loss, and a low back scar), render him so helpless (due to physical or mental incapacity), that he requires the aid of another person to perform the personal functions required in everyday living. The examiner must consider and discuss the extent to which the Veteran's service-connected disabilities impact his ability to: (a) dress and undress without assistance; (b) keep himself ordinarily clean or presentable without assistance; (c) adjust any prosthetic or orthopedic appliances; (d) feed himself (to include preparation of meals) without assistance; (e) tend to the wants of nature; and (f) protect himself from the hazards or dangers incident to his daily environment without care or assistance on a regular basis. The examiner should also address whether the Veteran is considered permanently bedridden by reason of his disabilities. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, 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.