Citation Nr: 22012898 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 20-07 002 DATE: March 7, 2022 REMANDED Entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the spine with intervertebral disc syndrome (IVDS) is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy right lower extremity as secondary to the service-connected disability of degenerative arthritis of the spine with IVDS, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1967 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 8, 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). On February 13, 2020, VA received a VA Form 9 from the Veteran. The Veteran declined a Board hearing. On November 15, 2021, VA received a letter from the Veteran's new representative. The representative included a VA Form 9 and VA Form 10182. Both forms requested a hearing. On November 16, 2021, the Board sent the representative a letter trying to clarify the VA Form 9 and VA Form 10182. On January 14, 2022, VA received a letter from the Veteran's representative stating they wished to proceed with the February 13, 2020 VA Form 9. Thus, the Veteran declined a hearing, and the case is now before the Board. 1. Entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the spine with IVDS 2. Entitlement to an initial rating in excess of 20 percent for radiculopathy right lower extremity as secondary to the service-connected disability of degenerative arthritis of the spine with IVDS The Veteran was afforded a VA examination in January 2020. The examiner provided initial range of motion measurements of 0-90 degrees of forward flexion, 0-25 degrees of extension, 0-25 degrees of right lateral flexion, 0-25 degrees of left lateral flexion, 0-25 degrees of right lateral rotation, and 0-25 degrees of left lateral rotation. The Veteran reported frequent moderate flare ups at least several times a month that last 2 to 3 days. The Veteran reported the flare-ups are alleviated by using lidocaine patches and a back brace. The examiner provided range of motion measurements during flare ups. However, the measurements were identical to the initial range of motion measurements. The examiner indicated the Veteran's radiculopathy manifested in the Veteran's right lower extremity with moderate constant pain, moderate intermittent pain, moderate numbness, and severe paresthesias and/or dysesthesia. The examiner did not find any other signs or symptoms of radiculopathy. The Board finds the January 2020 VA examination inadequate for rating purposes. The range of motion measurements given during flare-ups do not align with the evidence of record. There is no rationale to support an increase of range of motion despite the progression of flare-ups over time that the Veteran described. The January 2020 examiner did describe the Veteran's medication and bracing. Where the rating criteria does not specifically contemplate the effects of medication, a higher rating may not be denied based on relief provided by medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (where rating criteria says nothing about medication, the condition is to be evaluated as if without medication). In light of this, as well as the representative's November 2021 arguments, the Board finds another VA examination is necessary. In particular, the Veteran should be afforded an in-person examination so that he may discuss his lumbar spine symptoms and radiculopathy with the examiner and allow the examiner to make a better assessment of what symptoms would be present, and their severity, if evaluated without medication. Thus, on remand, the Disability Benefits Questionnaire (DBQ) must address the severity of the Veteran's service-connected lumbar spine disability without consideration of the ameliorative effects of medication. The matters are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claim, if any, to include any private treatment records, following proper VA procedures under 38 C.F.R. § 3.159(c). 2. Schedule the Veteran for a VA examination of the current severity of his lumbar spine and lower extremity radiculopathy disabilities. The most up-to-date Disability Benefits Questionnaire should be utilized. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to degenerative joint disease of the lumbar spine and radiculopathy of the lower extremities and discuss the effect of the Veteran's disabilities on any occupational functioning and activities of daily living without the use of medication. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale should be given for all opinions and conclusions expressed. 3. Provide the VA examiner's curriculum vitae to the Veteran's representative before returning the case to the Board. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.