Citation Nr: 22012735 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 19-33 493 DATE: March 7, 2022 REMANDED Entitlement to an evaluation in excess of 20 percent for a low back disability from April 26, 2019, to April 12, 2021, and in excess of 40 percent since then is remanded. Entitlement to an evaluation in excess of 20 percent for left lower extremity radiculopathy, including entitlement to a separate evaluation prior to April 12, 2021, is remanded. Entitlement to an evaluation in excess of 20 percent for right lower extremity radiculopathy, including entitlement to a separate evaluation prior to April 12, 2021, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active-duty service in the United States Air Force from June 1971 to June 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 decision by a Department of Veterans Affairs (VA) Regional Office. In a September 2021 decision, the Board denied entitlement to an evaluation in excess of 40 percent from August 27, 2018, to April 25, 2019, for the low back disability. The Board also denied entitlement to an evaluation in excess of 20 percent for the low back disability from April 26, 2019, and entitlement to a TDIU. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court), but only to the extent that it denied entitlement to an evaluation in excess of 20 percent for the low back disability from April 26, 2019, and entitlement to a TDIU. In a December 2021 Order, the Court vacated the Board's September 2021 decision on these issues and remanded the matter pursuant to a Joint Motion for Partial Remand (JMPR). While the Veteran's appeal was pending before the Court, the agency of original jurisdiction (AOJ) granted a 40 percent evaluation for the Veteran's low back disability, effective April 12, 2021. See June 2021 Rating Decision. In that rating decision, the AOJ also granted entitlement to service connection for radiculopathy of the left lower extremity and right lower extremity, effective April 12, 2021, each with a 20 percent disability evaluation. Thus, these matters are before the Board. See Chavis v. McDonough, 34 Vet. App. 1 (2019) (Board has jurisdiction to address ratings for associated radiculopathy granted within the scope of an appeal seeking an increased spine rating without requiring a separate notice of disagreement). Despite the award of increased evaluations, because the maximum benefits sought on appeal have not been granted, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Additional pertinent evidence in the form of VA records and VA examination reports was associated with the claims file since the latest adjudication of the matters on appeal. However, the Veteran has waived initial agency of original jurisdiction (AOJ) consideration of this evidence. See January 31, 2022, letter from Veteran's attorney. 1. Entitlement to an evaluation in excess of 20 percent for a low back disability from April 26, 2019, to April 12, 2021, and in excess of 40 percent since then is remanded. Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it considers the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). The Veteran was afforded a VA examination in May 2021 to address the severity of his low back disability. At that time, and following repetitive use over time, range of motion was limited at most to flexion to 20 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees and left lateral rotation to 15 degrees. Pain was noted as the factor that resulted in this functional loss. The examiner ruled out ankylosis. However, despite the range of motion findings and having ruled out ankylosis, the examiner remarked that the Veteran was "[u]nable to bend forward, laterally flex or laterally rotate the lumbar spine." The May 2021 VA examination is insufficient to decide the claim. On one hand, the examiner provides goniometric measurements that show while range of motion was limited, the Veteran retained the ability to flex, extend and laterally flex and rotate the lumbar spine. On the other hand, the examiner seems to indicate that there is complete loss of motion in all planes. The Board notes that while actual ankylosis may be ruled out, consideration must still be given to whether the Veteran's lumbar spine is functionally ankylosed. See Chavis v. McDonough, 34 Vet. App. 1 (2019). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). The opinion does not adequately address functional ankylosis and is returned. 38 C.F.R. § 4.2. 2. Entitlement to an evaluation in excess of 20 percent for left lower extremity radiculopathy, including entitlement to a separate evaluation prior to April 12, 2021. 3. Entitlement to an evaluation in excess of 20 percent for right lower extremity radiculopathy, including entitlement to a separate evaluation prior to April 12, 2021. Because the development directed below may impact these claims, particularly if a new VA examination is ordered, these claims are inextricably intertwined, and the Board will defer adjudication of them at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. Because the evaluations of the service-connected lumbar spine disability, right lower extremity neuropathy and left lower extremity radiculopathy, may impact upon the Veteran's claim of entitlement to a TDIU, the Board finds the issues to be inextricably intertwined. Id. The matters are REMANDED for the following action: 1. Return the claims file to the examiner that conducted the May 2021 examination, if available, for an addendum opinion to address whether the Veteran's low back disability has manifested by the functional equivalent of ankylosis. If the May 2021 VA examiner is not available, the claims file should be made available to another examiner for the requested opinion. If the examiner feels that a new examination is necessary to address this question, an examination should be scheduled prior to the examiner offering the requested opinion. The examiner is asked to address whether the Veteran's low back disability has manifested by the functional equivalent of ankylosis. The examiner is advised that when evaluating a disability under the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1, (2021). Therefore, ankylosis can be shown via functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). The examiner's attention is directed to the May 2021 VA examination report which documents limited range of motion metrics, most limited following repetitive use over time, but otherwise states that the Veteran is unable to flex, extend, laterally flex, or laterally rotate his lumbar spine. Any opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. (Continued on the next page) 2. Thereafter, and after conducting any additionally indicated development, readjudicate the claims. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.