Citation Nr: 22013144 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-33 306 DATE: March 8, 2022 REMANDED Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS) is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1959 to March 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in October 2017. A transcript of the hearing is associated with the Veteran's claims folder. This case was previously before the Board in April 2018, May 2020, July 2021, and December 2021, on which occasions the claims were remanded. 1. Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS) is remanded. 2. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the Veteran's claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. At the outset, the Board notes that in November 2021 the Veteran's Social Security Administration (SSA) profile was associated with his claims file. His profile indicates that he receives SSA disability with an initial entitlement date in March 2004. The Veteran's SSA disability records are not associated with his claims file and, therefore, a remand is required to allow VA to request these records. Additionally, the Veteran was last afforded a VA examination in May 2021, wherein the examiner indicated that flare-ups were denied. However, in a July 2021 Board decision, the Board found that this finding was inconsistent with VA examinations in January 2014 and May 2017 where flare-ups were endorsed. The Board further notes that despite finding that the Veteran does not experience flare-ups, the May 2021 examiner noted he is prescribed Tylenol as needed, which tends to suggest that he does in fact experience flare-ups of pain. Based on these inconsistencies, the Board remanded the Veteran's claims for an addendum opinion regarding the degree of reduced range of motion during flare-ups. In accordance with the Board's remand directives, addendum opinions were proffered in August 2021 and October 2021. In the August 2021 addendum opinion, the examiner denied that the Veteran experiences flare-ups. (8/11/2021, C&P Exam, p. 4). In the October 2021 opinion, the examiner provided estimations of the Veteran's degree of lost motion during flare-ups at the time of the January 2014 and May 2017 examinations, but did not opine on the effects of flare-ups at the time of the May 2021 examination. (10/22/2021, C&P Exam, p. 1). In a December 2021 decision, the Board found that the August 2021 and October 2021 addendum opinions were not fully responsive to the Board's remand directives. The Board therefore remanded the claims, and once again requested that a VA examiner opine on the degree of lost motion during flare-ups at the time of the May 2021 VA examination. In accordance with the December 2021 decision an addendum opinion was proffered in January 2022. However, the examiner once again denied that the Veteran experiences flare-ups. (1/2/2022, C&P Exam, p. 4). As previously noted, the Board found that this conclusion is not supported by the record in a July 2021 decision. As such, the Board finds that the December 2021 VA examination is inadequate. Given that the May 2021 VA examination was inadequate and the subsequent addendum opinions were not responsive to the Board's remand directives, the Board finds that the claim must be remanded for a new VA examination. Finally, because the Board is remanding the Veteran's claim for an increased rating for a lumbar spine disability, and the severity of any associated nerve disorders, to include radiculopathy, will be tested in the course of said examination, the issues are inextricably intertwined. As such, a remand of the claim for entitlement to an increased rating for left lower extremity radiculopathy is required. The matters are REMANDED for the following action: 1. AOJ should obtain copies of VA treatment records for the Veteran's disabilities from November 2021 to the present. 2. Obtain the Veteran's federal records from SSA. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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. 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. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to an increased rating for left lower extremity radiculopathy. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.