Citation Nr: 21032597 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-02 125 DATE: May 27, 2021 REMANDED The claim of entitlement to a rating in excess of 20 percent for residuals of a gunshot wound (GSW), postoperative, with weakness in the right lower extremity (RLE), to include lumbar radiculopathy, is remanded. The claim of entitlement to a rating in excess of 20 percent for residuals of a GSW, postoperative, with weakness in the left lower extremity (LLE), to include lumbar radiculopathy, is remanded. The claim of entitlement to a rating in excess of 10 percent prior to July 24, 2019, and in excess of 20 percent prior to November 10, 2020, and in excess of 40 percent thereafter, for degenerative arthritis with retrolisthesis, status post laminectomy, residual of GSW, is remanded. The claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 28, 2013, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1981 to September 1996. A hearing was held before the undersigned Veterans law Judge (VLJ) in October 2017. A transcript of the hearing is of record. In December 2017, the issues were remanded for additional evidentiary development. Subsequently, as reflected in an April 20, 2020, supplemental statement of the case (SSOC) and in an April 21, 2020, rating action, the 20 percent ratings in effect for radiculopathy of the RLE and the LLE were confirmed. The 10 percent rating in effect for the lumbar spine disability was increased to 20 percent, effective July 4, 2019, and a TDIU was granted, effective February 28, 2013. The claims were remanded again in September 2020. Subsequently, as indicated in a February 3, 2021, SSOC and rating action, the 20 percent rating in effect for the lumbar spine disability was increased to 40 percent, effective November 10, 2020. The 20 percent ratings in effect for the radiculopathy of the RLE and the LLE were confirmed, and entitlement to a TDIU prior to February 28, 2013, was denied. The appeal continues. The Board's remand in September 2020 was primarily for a VA compensation examination reassessing the severity of the service-connected low back disorder with separately rated disabilities of weakness in the right lower extremity (RLE) and left lower extremity (LLE). Notably, the Board directed the VA examiner to provide range-of-motion (ROM) testing pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016) and 38 C.F.R. § 4.59 (2020), which the Board noted, in part, required discussion as to if there were painful movements, and, if so, whether such pain contributed to functional loss or additional limitation of ROM. The examiner was to further describe the functional loss or additional limitation of ROM. The November 2020 examination report is confusing and contradictory as to these points. Specifically, when examined by VA in November 2020, the Veteran reported weekly flare-ups that were moderate in nature. They lasted for a few hours and were precipitated by movement. These were alleviated by rest. There was no functional loss or impairment of the thoracolumbar spine. ROM was from 0 to 80 degrees on forward flexion, extension was from 0 to 20 degrees, and bilateral lateral flexion and rotation were from 0 to 20 degrees. No pain was noted on exam. There was no additional loss of function or ROM after 3 repetitions. While the report reflects no pain upon initial ROM testing as noted above, as to "repeated use over time" and "flare-ups," the examiner checked the box for "pain," and found that such significantly limited functional ability of the spine. When asked to describe in ROM, the examiner noted that all ranges of motion were from "0 to 0 degrees." These findings were followed by the notations that there was no guarding or muscle spasm of the thoracolumbar spine. Moreover, deep tendon reflexes and sensory examinations were normal. There was no ankylosis. No IVDS was noted. As already stated, current review of the 2020 VA examination reflects that it is somewhat contradictory in regard to pain and not fully informative as to the actual functional impairment resulting therefrom. As noted above, upon initial ROM testing, there was no pain. However, pain was noted upon repeated use over time and during flare-ups. Actual functional impairment was not adequately discussed, and ranges of motion from "0 to 0 degrees" is not helpful in describing functional impairment. The U. S. Court of Appeals for Veterans Claims (Court) has stated that compliance by the Board or the RO is neither optional nor discretionary. Where, as here, the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In this instance there was not even the acceptable "substantial" compliance. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board, therefore, is required to correct these examination deficiencies, or at least try to. This correction is especially necessary since, during the pendency of this appeal, the Court decided the precedential case of Chavis v. McDonough, No. 18-2928 (April 16, 2021). The Chavis case held 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 ankylosis - i.e., functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45 (2020); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board additionally points out that there is a relationship between the Veteran's mechanical and neurological lumbar spine disabilities into the lower extremities. The Board thus finds that these issues, as well as entitlement to a TDIU prior to February 28, 2013, are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (noting that claims are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, a final decision by the Board on the Veteran's radiculopathy/weakness into the lower extremities and entitlement to a TDIU prior to February 28, 2013, at this time would be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). As such, the Board is deferring adjudication of these ancillary claims at this time. The matters are REMANDED for the following action: 1. Obtain all updated relevant treatment records (private and VA) and associate them with the claims file. 2. Schedule the Veteran for an examination to evaluate the current level of severity of his back disability. If the examiner is unable to conduct one of the evaluations delineated below, the examiner must provide a detailed explanation for why said examination cannot be conducted on the Veteran. In addition, the examiner must discuss pain for ROM movements on passive 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 on active, passive, or repetitive use. (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. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner must discuss pain when used in weight-bearing or in non-weight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing? (b) If yes (there is pain when used in weight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. If pain is noted during any ROM testing, the exact point at which pain starts during ROM must be clearly noted. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above, any issue is 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 T. Hal Smith, 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.