Citation Nr: 22010907 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 13-05 837 DATE: February 24, 2022 REMANDED Entitlement to an initial evaluation in excess of 10 percent for service-connected lumbar degenerative disc disease status post decompression of L3-L4 and stabilization of L3 to L5 (lumbar disability) prior to September 26, 2003, to exclude periods of convalescence is remanded. Entitlement to an evaluation in excess of 20 percent for service-connected lumbar disability from September 25, 2003 to December 11, 2019, to exclude periods of convalescence is remanded. Entitlement to an evaluation in excess of 40 percent for service-connected lumbar disability from December 12, 2019 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 17, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1984 to July 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran originally sought to reopen their claim of entitlement to service connection for the lumbar disability in May 1997. This was denied, and the Veteran successfully appealed the matter to the Board. In a November 2002 decision, the Board granted the claim to reopen the matter. In August 2003, the matter returned to the Board when it was remanded for further development. In a November 2005 decision, the Board denied the claim of entitlement for service connection. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in a December 2009 Memorandum Decision, the Court vacated the November 2005 Board decision. The matter returned to the Board in May 2010 when service connection was granted. In an October 2020 rating decision, the RO effectuated this grant, with a 10 percent evaluation effective May 29, 1997, a 20 percent evaluation from September 26, 2003, a 100 percent evaluation from October 27, 2003, and a 20 percent evaluation from January 1, 2004. The Veteran disagreed with the assigned ratings and appealed the matter again. In September 2015, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of this hearing has been associated with the record. This VLJ has since become unavailable to participate in the appeal. In September 2021, the Board sent a letter to the Veteran providing them with an opportunity to present testimony at a new hearing before a different VLJ. As explained in that letter, as the Veteran did not respond within 30 days from the date of the letter, the Board may assume that they do not want another hearing. The matter returned to the Board in July 2016, now accompanied by the TDIU claim. The staged rating claims prior to November 2013 were denied. The Board remanded the remaining portion of the lumbar disability claim to obtain a current evaluation as the Veteran had asserted a worsening of the condition. The TDIU claim was also remanded to obtain an opinion regarding the functional impact that the service-connected disabilities had on the Veteran's employability. The Veteran appealed the denial of the earlier staged rating claims to the Court. In a February 2018 Joint Motion for Partial Remand, the parties agreed that the Board erred in not considering evidence of intervertebral disc syndrome (IVDS). In a May 2018 rating decision, TDIU was granted effective November 17, 2014. As this is not a full grant of the benefits sought, and the earlier period remains on appeal. The matters returned to the Board in August 2018, June 2020, and April 2021, and remanded each time for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected lumbar disability prior to September 26, 2003 2. Entitlement to an evaluation in excess of 20 percent for service-connected lumbar disability from September 25, 2003 to December 11, 2019 3. Entitlement to an evaluation in excess of 40 percent for service-connected lumbar disability from December 12, 2019 is remanded. Remand is required for substantial compliance with the April 2021 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The April 2021 Board decision instructed the RO to obtain an addendum medical opinion from a VA orthopedic spine specialist or surgeon to ascertain the severity and manifestations of the lumbar disability for the entire period on appeal. The examiner was asked to identify any and all neurological manifestations, and to address the total duration of incapacitating episodes, and the severity and symptomatology of the IVDS for the entire appeal period. These were also the remand instructions for the August 2018 and June 2020 Board decisions. VA addendum medical opinions were obtained in June and July 2021 from a VA family physician. In April 2021, the RO attempted to request an opinion from a specialist with contractor. The contractor replied indicating that their contract with VA does not require a specialist to perform this particular examination, and that they routinely use generalist providers to complete it. Additionally, they explained that they do not have a specialist, and stated that if one is necessary, then they would be unable to provide the requested opinion. While substantial compliance with remand directives is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding there was no error where VA obtained a medical opinion from a neurologist, rather than an internal medicine specialist, as specified in a Board order). Contrary to the Board's previous remand orders, the performance of an examination by a non-specialist alone is insufficient to show that there has not been substantial compliance with a previous remand order. See Hansen v. Shinseki, 2012 U.S. App. Vet. Claims LEXIS 1505. Here, the RO has attempted to schedule examinations with specialists but was unable to do so because specialists were unavailable. Nonetheless, the examiners who were available performed the requested examinations and provided the requested opinions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation where an examiner made the ultimate determination required by the Board's remand). Moreover, there is no indication that the various examiners who have performed the VA examinations or provided VA opinions to date are not competent to provide these specific medical opinions regarding the etiology of the lumbar disability, or to perform an examination regarding the severity of left knee symptoms. Indeed, the Board is entitled to assume the competence of VA examiners. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The Veteran has not challenged, and the record does not indicate that there is any deficiency in, the credentials of these examiners. Ultimately, the Board finds that, to the extent that the VA examinations obtained were performed by medical professionals who were not orthopedic specialists, there has been substantial compliance with the Board's previous remand directives to that regard. Nonetheless, the Board finds that the medical opinions obtained still do not comply with the remand instructions. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Rather than addressing the lumbar disability symptoms for the entire appeal period, and IVDS in particular, the June 2021 opinion merely includes copies of assorted findings from the December 2019 and October 2020 VA examinations with no discussion of the earlier period. The same examiner also provided the July 2021 opinion; however, it appears that rather than providing any discernible medical facts or opinions of their own regarding the severity of the lumbar disability throughout the appeal period, the bulk of their opinion was merely copied directly, word for word, from a June 2020 informal brief submitted by the Veteran's representative, including legal arguments. The examiner provided very little insight into the severity of the disability otherwise. They included the November 2013 findings of IVDS without incapacitating episodes, the diagnoses found during the October 2020 VA examination, and a brief discussion critiquing a May 2018 private medical opinion and discussing which regulations apply to evaluating the disability. Accordingly, remand is required for an addendum VA medical opinion. 4. Entitlement to a TDIU prior to November 17, 2014 is remanded. As a determination with respect to the increased rating claim for the service-connected lumbar disability may have an impact upon consideration of the issue of entitlement to TDIU on appeal; the Board finds that these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). As such, Board consideration of the merits of the Veteran's TDIU claim is deferred. By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an examiner other than the examiner who provided the June and July 2021 addendum opinions to ascertain the severity and manifestations of the Veteran's service-connected lumbar disability for the period from May 29, 1997 to the present. The examiner is requested to review all pertinent records associated with the electronic claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should comment as to all signs and symptoms necessary for rating the Veteran's lumbar spine disability under the appropriate rating criteria, including the criteria in effect prior to September 23, 2002. In particular, the examiner should state the total duration of incapacitating episodes over the past 12 months and identify any/all neurological manifestations of the lumbar spine disability. The severity and symptomatology of the Veteran's intervertebral disc syndrome (IVDS) should also be addressed for the period from May 27, 1997 to present. The examiner is advised that prior to September 23, 2002, under Diagnostic Code 5293 (intervertebral disc syndrome (IVDS)), a rating of 10 percent was warranted for mild symptoms. A rating of 20 percent was warranted for moderate impairment; recurring attacks. A rating of 40 percent was warranted for severe, recurring attacks with intermittent relief. A rating of 60 percent was warranted for pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001). This rating code is applicable to the Veteran's IVDS from May 29, 1997 to the present (although separate neurological ratings of the lower extremity may affect use of this code). All evidence used in making this determination should be highlighted. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. All prior reports, including the May 2018 private opinion from Dr. D.M. and December 2019 VA addendum opinion should be addressed and/or reconciled, as necessary or possible. 2. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. The issue of entitlement to a TDIU for the period prior to November 17, 2014 should also be adjudicated. If a report is deficient in any manner, the AOJ must implement corrective procedures at once. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.