Citation Nr: 22061376 Decision Date: 11/02/22 Archive Date: 11/02/22 DOCKET NO. 95-23 675 DATE: November 2, 2022 REMANDED Entitlement to increased ratings for a cervical spine disability (currently rated as 10 percent disabling from April 1, 1994 until prior to April 14, 2021, and 30 percent disabling thereafter) (to specifically include consideration of General Rating Formula and IVDS Formula) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1974 to March 31, 1994. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 1995 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), seeking an increased rating for a cervical spine disability. The claim was initially prosecuted within one year of discharge and is still not yet final. The Veteran testified at a June 1997 hearing before a former Veterans Law Judge (VLJ). After that Veterans Law Judge retired, the Veteran testified before another VLJ at a June 2015 Board hearing. That second VLJ is also no longer employed by the Board. In October 2021, the Veteran was notified that the VLJ who presided over his second Board hearing is no longer at the Board and was offered a hearing before a third VLJ who would decide his appeal. To date, the Veteran has not requested a third Board hearing. As such, the Board finds the Veteran has waived the optional rehearing and may adjudicate the appeal based on the current record. This claim has been remanded ten times previously by the Board: September 1997; October 2003; October 2006; March 2010; February 2011; January 2013; January 2014; April 2016; November 2021; and June 2022. The June 2022 remand had two significant parts. In the first part, the Board requested information and retrospective analysis of the Veteran's IVDS since June 1994 under the former Diagnostic Code (DC) 5293. In the second part, the Board requested information and retrospective analysis relative to the Veteran's estimated limitation of motion over time. While there has been substantial compliance with the second part of the remand directives, the Board finds, unfortunately, that there has not been substantial compliance with the first part of the remand directives, as discussed below. See Stegall v. West, 11 Vet. App. 268, 270-271 (1998). Therefore, although the Board sincerely regrets additional delay in this case, remand is once again warranted to obtain an addendum opinion. Id. Entitlement to increased ratings for a cervical spine disorder (currently rated as 10 percent disabling from April 1, 1994 until prior to April 14, 2021, and 30 percent disabling thereafter) (to specifically include consideration of General Rating Formula and IVDS Formula) is remanded. The Board has unsuccessfully attempted to obtain a retrospective opinion that addresses the severity of the Veteran's IVDS over time. The Veteran appealed a January 1995 rating decision. Prior to September 23, 2002, IVDS was rated under former Diagnostic Code 5293. Under that code, a 10 percent rating was warranted for mild IVDS; a 20 percent rating was warranted for moderate IVDS with recurring attacks; a 40 percent rating was warranted for severe IVDS with recurring attacks and intermittent relief; and a maximum 60 percent rating was warranted for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasms, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). From September 23, 2002, IVDS may be rated based either on the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating IVDS Based on Incapacitating Episodes, the latter of which requires proof of physician-prescribed bed rest. Where a regulation changes during the pendency of a claim for a higher rating, the Board must determine whether the revised version is more favorable to the Veteran, and consider the claim under old and new versions of the regulation. Although the prior version of a regulation can be applied throughout the appeal period, i.e., prior to and subsequent to the change, if more favorable, any new/revised version can only be applied effective the date of the regulatory change. See DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. In its April 2016 remand, the Board attempted to ascertain whether application of the prior version of Diagnostic Code 5293 would be more favorable to the Veteran, given its potential applicability throughout the period on appeal. The Board requested a medical opinion as to whether the Veteran's IVDS was a manifestation or progression of his cervical spine arthritis disability, and if so, sought a retrospective evaluation as to when the condition first manifested and what has its severity been, over time, since 1994, pursuant to the criteria under the old DC 5293. A VA examination in May 2021 found IVDS was secondary to cervical spine traumatic arthritis, as a "complication" of the Veteran's disability. The May 2021 examiner, however, failed to provide retrospective information concerning the manifestations and severity of IVDS over the appellate period, noting only that the "Veteran's symptoms of cervical spine has increased and worsened" over the years, which "may be related to intervertebral disc disease." The examiner then opined that the IVDS was "pronounced with persistent symptoms compatible with sciatic neuropathy ... with little intermittent relief." However, the examiner did not indicate at what point in time, since 1994, the Veteran's IVDS was characterized by this level of severity, or whether this level of severity had persisted or varied throughout the period on appeal. No analysis of different periods of time was undertaken aside from the comment that his "cervical spine" had worsened over time, possibly due to IVDS. In its November 2021 remand, the Board sought clarification, requesting a medical opinion as to when the Veteran's IVDS manifested and its severity during the appeal period. The Veteran underwent a VA examination of the cervical spine in November 2021. In March 2022, the examiner rendered an opinion based on this examination that "the current musculoskeletal exam does not establish that the IVDS persisted, worsened, or manifested since 1994." This opinion was seemingly based on an evaluation of reported symptoms such as axial neck pain, cervical radiculopathy, and cervical myelopathy. The examiner commented that the condition waxed and waned over time and that "there is no available baseline for IVDS, therefore, a worsening cannot be determined." Later in the same opinion, the examiner opined it was less likely than not that the condition had persisted since 1994, and less likely than not that it had worsened over time. It is unclear as to whether the examiner was disputing that the Veteran had an IVDS diagnosis at all (in stating the condition had not "manifested"), or was instead opining it was not possible to determine its severity at any point during the appeal. Moreover, despite stating a worsening could not be determined, the examiner nevertheless opined that the condition had not worsened, thus making the determination he had asserted not possible. This evaluation of the severity of IVDS stands in stark contrast to the May 2021 opinion that the condition was, at least at some point in time, "pronounced" with persistent symptoms and little intermittent relief. The Board again sought further clarification. In its June 2022 remand, the Board found the March 2022 opinion based on the November 2021 examination was inadequate, as it "did not discuss the severity/symptoms of the Veteran's cervical spine disability throughout the appellate period," despite finding that "the Veteran's IVDS had manifested or persisted since 1994." However, the Board notes here that the June 2022 remand actually misstated this latter finding rather, as noted above, the November 2021 VA examiner indicated in one part of the opinion that the IVDS did not manifest, persist, or worsen since 1994. The June 2022 Board remand asked the VA examiner to "provide guidance as to whether the Veteran met the criteria for a higher disability rating under former DC 5293 [the code for IVDS] at any time during the appeal period." Specifically, the Board asked the examiner to provide an opinion evaluating the severity of the Veteran's IVDS since 1994 under that DC-- i.e., was the Veteran's IVDS mild, moderate with recurring attacks, severe with recurring attacks and intermittent relief, or pronounced with persistent symptoms and little intermittent relief. The examiner was specifically asked to indicate whether there were recurring attacks, and, if so, what was the degree of intermittent relief between the attacks. In the second section of the June 2022 remand, the examiner was then asked to provide a retrospective opinion on the Veteran's range of motion under the former DC 5290: whether it was severe, moderate, or slight during the period on appeal. The Board then instructed the RO to consider both the IVDS formula as compared to the General Rating Formula and determine which would be more beneficial to the Veteran throughout the appeal period, in consideration of his symptoms over time. As a result of the June 2022 remand, the Veteran's file was returned to the same examiner who conducted the November 2021 examination and provided the March 2022 opinion. The examiner conducted a new examination of the Veteran in June 2022. A medical opinion was rendered in August 2022. In this opinion, the examiner addressed the second section of the Board's June 2022 remand, i.e., a retrospective opinion regarding the Veteran's range of motion during the period on appeal, and whether it represented a "slight," "moderate" or "severe" evaluation under DC 5290. The examiner opined all historical ranges of motion would fall under the category of "slight" limitation of motion in light of the Veteran's symptomatology. However, absent from the examiner's opinion was the requested development in the first section of the Board's June 2022 remand: a retrospective evaluation of the severity of the Veteran's IVDS over time. The June 2022 examiner did not address the IVDS in the medical opinion, or provide guidance as to its severity at any point during the period on appeal. Indeed, the examination does not reflect that such opinion was requested at all, including only the Board's remarks with respect to the requested analysis of the Veteran's range of motion. Another remand is thus warranted to obtain a retrospective evaluation of the Veteran's IVDS. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the VA clinician who conducted the November 2021 and June/August 2022 examination and opinion, if that person is available, or from another qualified clinician. The clinician is asked to address the following: (a.) Undertake a retrospective analysis dating back to 1994, using generally accepted medical principles, regarding the severity of the Veteran's IVDS throughout the period on appeal (e.g., was it mild; moderate with recurring attacks; severe with recurring attacks and intermittent relief; or pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief). The clinician is advised that these characterizations of IVDS are from former Diagnostic Code 5293 of the VA Schedule for Rating Disabilities. Please clarify the comments in the March 2022 opinion with regard to whether the Veteran's IVDS manifested, progressed, or worsened since 1994. The clinician is asked to reconcile the May 2021 opinion that the condition was "pronounced" (at some point in time) with the March 2022 opinion that it did not manifest, progress, or worsen. The Board notes that the Veteran has been diagnosed with IVDS; it has indeed "manifested." The clinician is also asked to clarify the statement that progression or worsening cannot be determined, with the conflicting finding that the condition did not progress or worsen. The clinician has previously stated, in the March 2022 opinion, that no baseline severity of IVDS could be established, that IVDS waxes and wanes, is highly unpredictable, and that exacerbations can occur at variable intervals and for variable durations. The Board acknowledges that IVDS is characterized by periods of exacerbation and remission, but this is expressly contemplated by the diagnostic criteria (e.g., "recurring attacks," "intermittent relief," etc.). As such, the Board requests that the clinician ascertain, to the best of their ability, based on their clinical knowledge, medical literature, generally accepted medical principles, and the evidentiary record herein, the severity of the Veteran's IVDS throughout the period on appeal, applying former DC 5293. The clinician is asked to determine when the Veteran's IVDS manifested, at what level of severity the condition was when it manifest, and at what level of severity it was thereafter and since. If the severity of the Veteran's IVDS indeed waxed and waned over time, as the clinician has previously stated and is common with IVDS, the clinician should provide support for such findings, addressing any distinguishable or distinct periods of improvement (i.e., "intermittent relief") or worsening (i.e., "recurring attacks" or exacerbations), based on the evidence of record. The duration of time between any such exacerbations should be addressed in evaluating the severity of the condition over time. If the clinician is unable to glean from the record any identifiable or discrete periods of improvement or worsening of IVDS during the appeal period, or objectively determine the existence or duration of any periods of relief from exacerbations, the clinician should estimate the severity of the Veteran's IVDS from the time of manifestation to present. Such estimate should be based upon the examiner's knowledge, expertise, any relevant medical literature or the state of general medical knowledge regarding the condition, and the evidence of record. The Board understands that precision is not always possible, and appreciates the clinician's careful consideration of these issues. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley 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.