Citation Nr: 21028047 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 12-11 583A DATE: May 10, 2021 REMANDED Entitlement to a rating for degenerative joint disease, L5-S1 with subligamentous disc protrusion in excess of 10 percent prior to February 9, 2019 and in excess of 20 percent from February 9, 2019 is remanded. Entitlement to an initial rating in excess of 20 percent for lumbar radiculopathy, right lower extremity, is remanded. Entitlement to an initial rating in excess of 20 percent for lumbar radiculopathy, left lower extremity, is remanded. REASONS FOR REMAND The Veteran had active duty from March 1985 to April 1988, from December 1990 to July 1991, and from November 2002 to June 2003. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The October 2011 rating decision denied a rating in excess of 10 percent for the Veteran's L5-S1 degenerative joint disease. The Veteran's notice of disagreement (NOD) was received in December 2011. The RO issued the statement of the case (SOC) in March 2012 and the Veteran's VA Form 9 (substantive appeal) was received in May 2012. The RO then issued a supplemental statement of the case (SSOC) in May 2016. In May 2017 the Board remanded the case to the RO for further development. Before the case was returned to the Board, the RO issued a rating decision in August 2017 that granted service connection for lumbar radiculopathy of the right lower extremity and service connection for lumbar radiculopathy of the left lower extremity. The RO assigned a 10 percent rating to each disability, both effective from July 18, 2017. The RO noted that these issues are inextricably intertwined with the issue on appeal of entitlement to an increased rating for the L5-S1 degenerative joint disease and informed the Veteran that no further action on his part was required. In December 2017 the Board again remanded the case to the RO for further development. In the Introduction portion of the remand, the Board determined that it did not have jurisdiction over the issues of increased ratings for lumbar radiculopathy of the right and left lower extremities. Before the case was returned to the Board, the RO issued a rating decision in March 2019 that granted an increased rating to 20 percent for the L5-S1 degenerative joint disease, effective from February 9, 2019. In the same decision, the RO also granted an increased rating to 20 percent for lumbar radiculopathy of the right lower extremity and an increased rating to 20 percent for lumbar radiculopathy of the left lower extremity, both effective from February 9, 2019. In a July 2019 decision, the Board denied the Veteran's claim for a rating for the L5-S1 degenerative joint disease in excess of 10 percent prior to February 9, 2019 and in excess of 20 percent from February 9, 2019. The Board also found that the issues of higher initial ratings for lumbar radiculopathy of the right and left lower extremities were outside the scope of the appeal because the Veteran did not challenge the ratings assigned by the RO or otherwise attempt to bring these issues within the scope of the appeal. The Veteran appealed the July 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). While his claims were pending at the Court, the Veteran's representative and the VA Office of General Counsel filed a Joint Motion requesting that the Court vacate the Board's decision with respect to the denial of entitlement to a rating for the L5-S1 degenerative joint disease in excess of 10 percent prior to February 9, 2019, and in excess of 20 percent thereafter and remand the case to the Board for further development and readjudication. In an April 2020 Order, the Court granted the Joint Motion for Partial Remand (JMPR). The case was returned to the Board. The Board remanded the case for further development once again in September 2020. 1. L5-S1 Degenerative Joint Disease The Veteran's L5-S1 degenerative joint disease has been assigned a 10 percent rating effective December 7, 2007, and a 20 percent rating effective February 9, 2019. The Veteran asserts that his disability is more severe than the current ratings reflect. As noted in the April 2020 JMPR, the Board had previously erred by relying upon September 2010, April 2016 and July 2017 VA examinations that were inadequate, at least in part, because they failed to properly consider the Veteran's reports of flare-ups. In its September 2020 remand, the Board noted the Veteran's reports that he experienced moderate low back flare-ups in a September 2010 examination. The Board asked an examiner to discuss those flare-ups in detail, to include expressing the limitation of functional ability in terms of the degree of additional range of motion loss during flare-ups. See Board remand, September 25, 2020. The Veteran underwent a new VA examination in December 2020. The Veteran did not report any flare-ups and hence range of motion measurements during flare-ups were not provided. However, the Board must still consider how the Veteran's previously reported flare-ups impacted his L5-S1 degenerative joint disease. Therefore, the Board finds that in light of Sharp v. Shulkin, 29 Vet. App. 26 (2017), retrospective opinion regarding the Veteran's L5-S1 degenerative joint disease is required. 2. Right and Left Lower Extremities Radiculopathy The Veteran's left and right lower extremities radiculopathy has been assigned a 10 percent rating effective July 18, 2017, and a 20 percent rating effective February 9, 2019. The Veteran generally asserts that his disability is more severe than the current ratings reflect. The Board finds that the issues of an increased rating for the Veteran's left and right lower extremities radiculopathy is inextricably intertwined with the issue of an increased rating for the L5-S1 degenerative joint disease. The Board will defer adjudication of the increased rating for the Veteran's left and right lower extremities radiculopathy until the development directed on that claim has been completed. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) 2. Following the receipt of outstanding records, return the claims file to the December 2020 examiner to obtain a retrospective opinion regarding the severity of the Veteran's service connected L5-S1 degenerative joint disease. After reviewing the record, the examiner should provide an estimate, if at all possible, as to the Veteran's range of motion of the lumbar spine prior to February 9, 2019, to specifically include range of motion during flare-ups. The need for further in-person examination is left to the discretion of the examiner. In doing so, the examiner should discuss the historical severity of the Veteran's range of motion with both active and passive motions as well as in weight-bearing and nonweight-bearing, to include during any flare-up episodes or with repeated use over time. If factors, such as pain, weakness, fatigability or incoordination limited range of motion or functional ability, discuss its impact in terms of the severity, frequency and duration thereof. If possible, the examiner should provide an estimate of his range of motion in degrees. Further, if the Veteran's L5-S1 degenerative joint disease underwent an increase in severity at any time prior February 9, 2019, the examiner should identify when the increase occurred. If the reviewing health care provider finds that physical examination of the Veteran and/or diagnostic testing is necessary, such should be accomplished. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the RO should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lech, 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.