Citation Nr: 21029635 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 14-21 124 DATE: May 14, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to July 2, 2013, and in excess of 20 percent thereafter, for a lumbar spine disability is remanded. Entitlement to an initial rating in excess of 10 percent prior to October 5, 2018, and in excess of 20 percent thereafter for sciatica of the left lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent prior to October 5, 2018, and in excess of 20 percent thereafter, for sciatica of the right lower extremity is remanded. Entitlement to a rating in excess of 20 percent for sciatica of the left femoral nerve is remanded. Entitlement to a rating in excess of 20 percent for sciatica of the right femoral nerve is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to August 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran's claims for entitlement to a rating in excess of 10 percent prior to July 2, 2013, and in excess of 20 percent thereafter, for a lumbar spine disability, and for entitlement to initial ratings in excess of 10 percent for sciatica of the left and right lower extremities were previously before the Board in March 2018, when they were remanded for additional development. During the pendency of the appeal, a January 2021 rating decision granted an increased 20 percent rating for sciatica of the left and right lower extremities, effective October 5, 2018. In addition, the January 2021 rating decision also granted entitlement to service connection for sciatica of the left and right femoral nerves, and assigned 20 percent ratings, effective October 5, 2018. See January 2021 Rating Decision Narrative. As these ratings are not the maximum allowable, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to a rating in excess of 10 percent prior to July 2, 2013, and in excess of 20 percent thereafter, for a lumbar spine disability is remanded. As noted above, the Board remanded the issues on appeal in March 2018. Specifically, the Board, in pertinent part, asked the RO to schedule the Veteran for a VA examination to determine the severity of his service-connected thoracolumbar strain with thoracic arthritis and bilateral lower extremity sciatica. To this end, the Board indicated that the examiner must comment on the severity of the Veteran's service-connected disabilities under the criteria indicated by the relevant Disability Benefit Questionnaire (DBQ), to include with regard to flare-ups, and stated that an explanation must be expressed for all opinions provided. See October 2018 BVA Decision. After a review of the record, the Board notes that the Veteran was afforded a VA examination in October 2018, and VA obtained an addendum opinion in January 2021. However, the Board finds that the October 2018 VA examiner did not substantially comply with the March 2018 Board remand, and as such, additional development is needed before the Veteran's claims can be decided. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted above, the Veteran was afforded a VA examination in October 2018. The examiner noted that the Veteran had been diagnosed with lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), and thoracolumbar strain with thoracic arthritis. During the examination, the Veteran endorsed sharp, shooting low back pain concentrating at the L5-S1 location, which spread across his lower back down into his bilateral lower extremities, which caused decreased mobility and prevented him from sleeping. The Veteran reported that he managed his pain with daily medications, to include gabapentin, methocarbamol, motrin, and oxycodone. He also endorsed flare ups, during which he was unable to walk without assistance and occasionally led him to seek emergency medical treatment due to inability to walk or function. In this regard, the Veteran indicated that his flare-ups typically lasted for three to seven days and indicated that he experienced flare-ups that required emergency medical treatment approximately once every three months. He also reported increasing problems with back spasms that caused his knees to buckle and placed the Veteran at an increased risk of falls. Range of motion testing revealed forward flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and bilateral lateral rotation to 25 degrees. Abnormal ROM was found to contribute to functional loss by limiting the Veteran's ability to bend, stoop, twist, turn, lift more than 25 pounds, walk, stand, and climb. The examiner further noted that ROM itself contributed to functional loss. In this regard, the examiner stated that, although the Veteran performed lumbar flexion, he was in acute and severe pain, expressed by grimacing and guarded motion, and required one minute to slowly return to an upright position. Pain was noted on forward flexion, extension, and bilateral lateral flexion, which caused functional loss, on rest/non-movement, and with weight-bearing. Repetitive use testing could not be performed due to fear of pain, and as a result, the examiner reported that he was unable to determine whether pain, weakness, fatiguability, or incoordination significantly limited his functional ability over time or during flare-ups or to describe any additional limitation in terms of ROM without resort to speculation. In this regard, the examiner reported that, because was there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. In addition, passive ROM testing was not performed as it was not feasible to do in a safe manner. See October 2018 C&P examination. VA obtained an addendum opinion from a different VA examiner in January 2021. After reviewing the Veteran's claims file, the examiner reported that pain would significantly limit the Veteran's functional ability with repeated use over time. In this regard, the examiner found that repeated use over time would cause additional loss of ROM, resulting in forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees and bilateral lateral rotation to 20 degrees. In addition, the January 2021 examiner noted that the October 2018 VA examination was not conducted during a flare-up but found that pain significantly limited the Veteran's functional ability with flare-ups, and would limit forward flexion to 35 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral extension to 5 degrees, and bilateral lateral rotation to 15 degrees. See January 2021 C&P examination. Although the January 2021 VA examiner stated that she reviewed the claims file in connection with her opinion, it is unclear how she determined additional ROM loss on repeated use testing and during flare-ups. There is no indication that the January 2021 VA examiner performed a physical examination, and she neither provided rationale nor referenced or cited any medical or lay to support her findings. To the contrary, the January 2021 examiner's ROM appear to contradict the findings noted in the October 2018 VA examination report. To this end, although the January 2021 VA examiner noted that pain would significantly limit the Veteran's functional ability with repeated use over time, she also determined that it would cause additional loss of ROM, resulting in forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees and bilateral lateral rotation to 20 degrees. However, although the Veteran did not perform repetitive use testing due to fear of pain, the examiner noted that he Veteran was in acute and severe pain, expressed by grimacing and guarded motion, and required one minute to slowly return to an upright position after initial ROM testing. See October 2018 C&P examination. The Board further notes that the January 2021 VA examiner noted that the October 2018 VA examination was not conducted during a flare-up but found that pain significantly limited the Veteran's functional ability during flare-ups and would limit forward flexion to 35 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral extension to 5 degrees, and bilateral lateral rotation to 15 degrees. See January 2021 C&P examination. However, during the October 2018 VA examination, the Veteran reported that he was unable to walk without assistance and occasionally required emergency medical treatment due to inability to walk or function during his flare-ups. In this regard, the Veteran indicated that his flare-ups typically lasted for three to seven days and indicated that he experienced flare-ups that required emergency medical treatment approximately once every three months. In this regard, the Board notes that other medical evidence of record supports the Veteran's statements regarding the severity and ROM limitations he experiences during flare-ups. Specifically, a June 2015 emergency department note shows that the Veteran was unable to lie still due to a back spasm when he arrived at the hospital. He also endorsed severe low back pain and spasms and stated that he had been experiencing sharp pain radiating from his bilateral lumbar paraspinous areas to his posterior thighs. In June 2016, the Veteran sought emergency medical care for back pain. The Veteran further reported that he had been taking oxycodone without relief. In addition, a December 2017 emergency department note shows that the Veteran had an acute back spasm that radiated down his left lower extremity. In this regard, the Veteran reported that the spasm had caused him to fall but indicated that he was able to catch himself. A May 2018 neurosurgery consultation report shows that the examiner found it difficult to determine movement patterns on standing forward flexion testing due to pain. See August 2017 CAPRI; October 2018 CAPRI. Based on the foregoing, the Board finds that VA did not substantially comply with the March 2018 remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand). 2. Entitlement to an initial rating in excess of 10 percent prior to October 5, 2018, and in excess of 20 percent thereafter, for sciatica of the left lower extremity is remanded. 3. Entitlement to an initial rating in excess of 10 percent prior to October 5, 2018, and in excess of 20 percent thereafter, for sciatica of the right lower extremity is remanded. 4. Entitlement to a rating in excess of 20 percent for sciatica of the left femoral nerve is remanded. 5. Entitlement to a rating in excess of 20 percent for sciatica of the right femoral nerve is remanded. The Board notes that any VA lumbar spine examination will likely include information relating to his service-connected sciatica of the bilateral lower extremities and femoral nerves. Thus, the Board finds that these increased rating claims are intertwined and are remanded for further development. Accordingly, the Board finds that a remand is necessary to obtain VA examination opinion to ascertain the current nature and severity of the Veteran's diagnosed lumbar spine disability, to include sciatica of the bilateral lower extremities and femoral nerves. 6. Entitlement to TDIU is remanded. Lastly, the Board notes that the March 2018 Board decision also included the issue of entitlement to TDIU. However, the record shows that the Agency of Original Jurisdiction (AOJ) has not addressed the claim on the merits. Accordingly, the matter is remanded. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. After completion of the above development, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected lumbar spine disability, to include sciatica of the bilateral lower extremities and femoral nerves. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. The examiner should conduct range of motion studies and assess any functional impairment due to such factors as pain and weakness and express this functional impairment in terms of further loss of motion. The examiner should attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, the examiner should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion sought. 3. Thereafter, readjudicate the claims, to include adjudicating the claim for TDIU. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.