Citation Nr: 21040620 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-58 758A DATE: July 6, 2021 ISSUE Entitlement to a disability rating in excess of 10 percent for the period prior to March 23, 2020, and in excess of 40 percent thereafter, for service-connected lumbar spine degenerative joint disease. REMANDED Entitlement to a disability rating in excess of 10 percent for the period prior to March 23, 2020, and in excess of 40 percent thereafter, for service-connected lumbar spine degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from May 1987 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in November 2019 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Id. at 453-54. In this case, the Veteran has repeatedly asserted that he his lumbar spine disability has caused him to miss periods of work due to incapacitating episodes. The Veteran has also testified in November 2019 that he has had to change jobs due to his lumbar spine disability. Having said that, when the undersigned Veterans Law Judge asked the Veteran if he was unemployed, the Veteran testified "no, I am not ... I'm now working at the house ... and that is suitable employment and I am employable." As such, the issue of entitlement to TDIU is not before the Board at this time. In January 2020, the Board remanded this matter for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following the Board remand, in a rating decision from August 2020, the RO increased the Veteran's disability rating for his service-connected lumbar spine disability from 10 percent to 40 percent, effective March 23, 2020. Having said that, the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to a disability rating in excess of 10 percent for the period prior to March 23, 2020, and in excess of 40 percent thereafter, for service-connected lumbar spine degenerative joint disease. The Veteran has claimed that his service-connected lumbar spine disability is worse than currently rated for each period on appeal. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Turning to the available evidence, the Veteran wrote in his Notice of Disagreement from August 2016 that he has intervertebral disc syndrome (IVDS), and that he has been factually bed-ridden incapacitated by [his] spinal degenerative joint disease for varying periods of time over the past 5-6 years. Sometimes 2-3 days, but I have been incapacitated for weeks at a time on at least three occasions in the past 2 years. I have experienced a total duration of at least 6 weeks every year during the 3 most recent years. The Veteran also submitted a detailed statement in December 2016, saying that he has IVDS, and that he has "had acute flare-ups resulting in incapacitating episodes with increasing regularity over the past five years." He also wrote that at times, he has gotten "out of bed, and I fell to the floor with acute stabbing pain in my lower back [so he] limited activities for the day." The Veteran has also argued that he has not thus been able to be prescribed bed rest by a physician, because these periods come from regular flare-ups, during which he is unable to leave his bed. Therefore, he argues, when his lumbar spine disability is at its worst, he is not able to physically attend an examination. He further argued that his back has worsened since the most recent examination, and that the incapacitating episodes have increased in severity over the last 3-5 years. The Veteran has also submitted a statement to his United States Congressional Representative in February 2018, which further describes his symptoms, pain from his claimed IVDS, and the number of incapacitating episodes that the Veteran has experienced over the past few years. The Veteran provided testimony at a Board hearing before the undersigned in November 2019. The Veteran testified that his lumbar spine disability has gotten "a lot worse" since his last VA examination, and that the report from that last VA examination was inadequate insofar as it "glossed over half the stuff that I provided." The Veteran testified that he has IVDS and that he has missed significant time from work due to the incapacitating episodes he experiences regularly. Finally, the Veteran reiterated his difficulty being rated under IVDS, because it requires him to go "to a doctor and ask them for a prescription for bed rest," however every time his back is at its worst, he is unable to leave bed to go to that doctor. The Veteran is competent to provide evidence of that which he experiences, including a worsening of his symptoms, and his need for bed rest during flare ups of his lumbar spine disability. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Turning to the medical evidence, the Board notes that the Veteran's claim was previously before the board in January 2020. In that Decision, the Board noted that a July 2016 VA examination was inadequate, as it denied the Veteran experienced IVDS, no range of motion testing took place, and the examination was not compliant with Sharp v. Shulkin. See Sharp, Id. The Board also determined in that Decision that the November 2018 disability benefits questionnaire (DBQ) was inadequate for ratings purposes, as it also denied that the Veteran experienced IVDS, and the Veteran's claims file was not reviewed. Thus, the Veteran's claim was remanded for a VA examination. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). That VA examination occurred in March 2020. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed the Veteran's diagnosis of lumbar degenerative disc disease. During the exam, the Veteran described back pain that was constantly rated with severity at about five out of ten, but during flare ups it was a nine or ten out of ten. The Veteran described missing 6-8 weeks of work per year, and "maxing out his sick leave and annual leave." The Veteran described flare ups as his back seizing up, that occur "every two months," where "he is unable to move." The Veteran described difficulty walking and leaning forward, but also "with prolonged sitting and airplanes or cars." On clinical testing, the Veteran's ROM was at its worst during a flare up, where he exhibited forward flexion to 15 degrees, extension to 10 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 10 degrees. The Veteran had no guarding or muscle spasm of the spine, and ankylosis was not shown. Despite the Veteran's lay statements, the examiner denied that the Veteran had IVDS. The RO then requested that the VA examiner provide an addendum opinion clarifying the Veteran's claimed diagnosis of IVDS, and specifically whether or not he has had incapacitating episodes with bed rest and treatment as prescribed by a physician. From that request, the VA examiner provided an addendum opinion in August 2020. Considering the question of whether the Veteran has had any incapacitating episodes during the past twelve months, the examiner answered the following: Veteran's provided estimate of incapacitating episodes is provided below. I have no evidence to suggest this estimate is not accurate: 2016, 21 days with sick leave; 2015, 18 days with sick leave; 2014, 27 days with sick leave; 2013, 3 days with sick leave. No further information was provided, including as to whether the Veteran had a current diagnosis of IVDS, nor if those past days of sick leave are due to incapacitating episodes where bed rest was prescribed by a physician. In consideration of the above, the Board finds that a further addendum opinion is needed. To begin, the VA examiner in March 2020 denied that the Veteran had a diagnosis of IVDS, despite noting lay statements and the Veteran's testimony of being bed ridden during periods of a flare up. The RO then asked the VA examiner whether or not the Veteran had a current diagnosis of IVDS, and to indicate the number of incapacitating episodes that the Veteran had experienced over the past twelve months. Instead, even when specifically asked for clarification by the RO, the VA examiner's opinion simply deferred to the Veteran-provided estimation. Furthermore, the days lost due to sick leave, as provided by the Veteran, only covers the period from 2013-2016. The period "over the past twelve months," as required by the diagnostic codes for IVDS was not addressed. Finally, while the examiner's opinion does address time lost for a staged rating period on appeal the period prior to March 23, 2020 the opinion does not indicate that those days lost are due to periods of incapacitation as defined under 38 C.F.R. § 4.71a, IVDS Formula, Note (1). For reference, the diagnostic code for IVDS specifies that periods of incapacitation are not simply days that the Veteran has missed work, but instead that an "incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Meaning, that there is a requirement that the bed rest and treatment be prescribed by a physician. The Board notes that this is particularly important because the Veteran has frequently described periods of required bed rest, and in some instances totaling a duration of at least six weeks over the past twelve months. See August 2016 NOD, see further November 2019 Board Hearing. Therefore, the medical evidence does not give an adequate picture as to the either the current, or the past, severity of the Veteran's disability for the period from March 23, 2020, particularly as it relates to a possible diagnosis of IVDS and the further possibility of prescribed periods of bed rest. See Allday v. Brown, 7 Vet. App. 517, 526 (1995). If the record does not adequately reveal the current state of a claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday, Id. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such increased rating determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an increased rating so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Forward the Veteran's claims file to the same examiner who conducted the March 2020 VA examination and provided the August 2020 addendum opinion, to provide an additional addendum opinion assessing the nature and severity of his service-connected lumbar spine degenerative joint disease. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examiner is asked to provide an opinion as to the following: (a.) Clarify whether or not the Veteran has, or has ever had, a diagnosis of IVDS that results in incapacitating episodes, as defined by VA regulation. *An incapacitating episode is defined by VA regulation as a period of acute signs and symptoms due to intervertebral disc syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician. Importantly, bed rest as prescribed by a physician and treatment by a physician is required for a finding of an incapacitating episode under the Diagnostic Codes. (b.) Clarify whether the Veteran has had any incapacitating episodes during the past 12 months, and, if so, the number of episodes and the duration of them. (c.) Provide a retroactive opinion as to whether the Veteran had previously had any incapacitating episodes prior to March 2020, and if so, the number of episodes per year and the duration of them. The examiner must also consider the Veteran's lay statements and testimony regarding this disorder. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. 3. After ensuring that the requested actions are completed, readjudicate the claim on appeal, taking into consideration all applicable rating criteria. If the requested benefits remain denied, the Veteran and his Representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.