Citation Nr: 22013378 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 16-34 477 DATE: March 9, 2022 REMANDED Entitlement to initial increased disability ratings for the service-connected lumbar spine degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS), evaluated as 10 percent disabling prior to October 1, 2019; as 20 percent disabling from October 1, 2019, to November 2, 2021; and as 40 percent disabling from November 3, 2021 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for the lumbar spine disability and assigned a 10 percent rating, effective November 19, 2007. This matter has a lengthy procedural history. In January 2016, the Board remanded the matter for the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). In December 2018, the Board remanded the matter to obtain an examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Based on the development conducted following the December 2018, the RO issued a new rating decision in July 2020. In that decision, the RO assigned an increased 20 percent rating for the Veteran's lumbar spine degenerative disc disease and IVDS, effective October 1, 2019. In the most recent remand from June 2021, the Board remanded the matter to obtain an examination that considered the principles and rating criteria from the Schedule for Rating Disabilities of the Musculoskeletal System that were amended effective February 7, 2021, and to obtain a retrospective medical opinion assessing the Veteran's functional loss for the appeal periods prior to October 1, 2019. Based on the development conducted following the June 2021 Board remand, the RO issued a new rating decision in December 2021, in which the RO awarded a higher rating of 40 percent for the lumbar spine disability, effective November 3, 2021. As higher ratings remain available for all appellate periods, the matter remains on appeal. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Initial Increased Ratings Service-Connected Lumbar Spine Disability In the most recent Board remand dated June 2021, the Board observed that the VA examinations from May 2011 and July 2016 did not adequately comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, the Board noted that the May 2011 VA examiner failed to solicit relevant information from the Veteran regarding her additional functional loss during flare ups or with increased activity. As such, the Board directed the RO to obtain a retrospective opinion which adequately addressed any additional functional loss due to increased symptomatology during increased periods of activity for the appeal periods prior to October 1, 2019. The Board requested that, if the examiner could not provide the requested opinion that the examiner explain why this is so and requested that the examiner include a discussion of whether the prior VA examinations are accurate representations of the Veteran's disability level. An addendum opinion was obtained in November 2021 but, unfortunately, the examiner wholly failed to address the questions presented. The examiner stated that they were unable to state without mere speculation whether the Veteran's prior VA examinations are accurate representations of her disability level. The examiner stated that they were not comfortable and would not be able to provide a retrospective medical opinion even with consideration of the evidence of record. The examiner recommended that the opinion be directed either to the original examiners or to examiners that are competent to handle such questions. No other opinion was obtained, nor does it appear any effort was made to find an examiner with adequate expertise to be able to answer the questions presented. As the November 2021 VA examiner failed to provide a retrospective opinion or adequately address whether the Veteran's prior examinations accurately represent her disability level, the Board finds there has not been substantial compliance with this portion of the June 2021 Board remand directives. Corrective action is, thus, necessary. Stegall, 11 Vet. App. at 271. On remand, a retrospective medical opinion should be obtained which adequately addresses any additional functional loss due to increased symptomatology during increased periods of activity for the appeal periods prior to October 1, 2019, from an examiner with the requisite competence and expertise for providing such an opinion. Further, at the August 2021 VA examination, the Veteran reported current symptoms of pain and limited range of motion and reported that she is unable to stand for prolonged periods of time or lay flat on her back. The examiner noted that the Veteran reported daily flare-ups that are moderately severe, last all day, and are precipitated by standing or sitting for prolonged periods of time. Functional loss and functional impairment were indicated as the Veteran is unable to stand for prolonged periods of time. The Veteran's range of motion itself contributed to functional loss and the examiner indicated that bending is sometimes affected. The examiner did not address whether the Veteran's range of motion in these moments would amount to unfavorable ankylosis. The Veteran's range of motion was recorded in active range of motion, and the examiner noted that the Veteran's passive range of motion was the same as her active range of motion. Evidence of pain was indicated in active and passive motion, but such did not result in or cause functional loss. The examiner did not record at which point the Veteran experienced pain in range of motion testing. The examiner did not provide range of motion testing in weightbearing or non-weightbearing or indicate that such was not possible. Correia v. McDonald, 28 Vet. App. 158 (2016). No ankylosis or other neurologic abnormalities were noted. The Veteran was noted to have IVDS, but such did not include episodes requiring bed rest prescribed by a physician within the past 12 months. At the November 2021 VA examination, the examiner acknowledged the active range of motion of the Veteran's lumbar spine and stated that the passive range of motion testing was the same as her active motion. The examiner did not provide any range of motion for weightbearing or non-weightbearing measurements. Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner indicated that there was evidence of pain in weightbearing, active motion, and passive motion and that the pain does not result in or cause functional loss. However, the examiner also recorded the Veteran's reports that she cannot bend without severe pain and that she cannot stand or sit for a long time without pain. Importantly, the examiner did not address whether the pain she reported amounts to unfavorable ankylosis. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The examiner recorded the Veteran's reports that her condition causes functional loss and functional impairment manifested by an inability to stand or sit for long periods without pain. No ankylosis or other neurologic abnormalities were noted, and the noted IVDS reportedly did not require physician-prescribed bed rest in the past 12 months. Because the August 2021 and November 2021 examination reports do not appear to have solicited the full picture of the Veteran's lumbar spine disability, failed to provide full range of motion testing of her lumbar spine, and failed to include information regarding whether her pain and inability to bend results in unfavorable ankylosis, the Board finds the examinations to be inadequate for rating purposes and there has not been substantial compliance with the June 2021 Board remand directives. Accordingly, a remand is necessary for corrective action, to include obtaining a new examination that adequately addresses the current severity of the Veteran's lumbar spine disability. Finally, the Board notes that, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's lumbar spine disability is currently rated under Diagnostic Code (DC) 5242, but prior to November 3, 2021, such was rated under DC 5243. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim for an increased rating for her service-connected lumbar spine disability under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to February 7, 2021, DC 5242 provided criteria for degenerative arthritis of the spine, referencing DC 5003. As of February 7, 2021, the amended version of DC 5242 provides criteria for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, and references DC 5003 and 5010. Regardless, both versions of the regulations instruct that DCs 5235 to 5243 to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) unless 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. While a change was made to DC 5243 for IVDS, it was only to clarify that this diagnostic code would only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 would be assigned for all other disc diagnoses. On remand, therefore, the nature and severity of the Veteran's service-connected lumbar spine disability should be adequately assessed, and the examination obtained should be compliant with the requirements set out in Correia and the new appropriate diagnostic codes. TDIU As the remand of the claim for increased ratings for the service-connected lumbar spine disability could affect the claim for a TDIU, the Board finds that these issues are inextricably intertwined and that a decision on the TDIU claim at this time would be premature. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the Board notes that the Veteran submitted a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability in April 2016. As significant time has passed since she submitted a completed copy of that form, she should be invited to submit an updated VA 21-8940, if there have been any changes since April 2016. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the severity of the service-connected DDD and IVDS of her lumbar spine. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings found on examination to be associated with these disabilities must be reported in detail. The examiner should: a. provide a retrospective opinion that addresses the severity of the Veteran's lumbar spine disability for the appeal periods prior to October 1, 2019. In rendering this opinion, consideration should be given to the relevant evidence of record, including the May 2011 and July 2016 VA examinations, the Veteran's lay statements, and her medical history. To the extent possible, the retrospective opinion should also comply with the requirements of the holdings in Correia and Sharp and address the Veteran's reports of increased pain with increased activity and whether such resulted in additional functional loss. b. The examiner should test the current range of motion and pain in the Veteran's lumbar spine in active and passive motion as well as weight-bearing and non-weightbearingto the extent possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he/she should clearly explain why that is so. In reporting the results of range of motion testing, the examiner should specifically identify the points, if any, at which pain begins. c. Additionally, the examiner should describe any current functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of the pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. d. Should the examiner state that he/she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flareup, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate informationi.e. frequency, duration, characteristics, severity, or functional lossregarding the Veteran's flareups by alternative means. e. The examiner must assess all current neurological abnormalities due to the DDD and IVDS of the Veteran's lumbar spine. f. The examiner should address how this lumbar spine disability impacts the Veteran's activities of daily living, including her ability to obtain and maintain substantially gainful employment. The examiner is advised that the Veteran is competent to report her symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 2. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and advise her to complete and return the form in support of her claim for a TDIU. If the completed form is returned, conduct any additional development that may be warranted based upon the information in the form. No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Her failure to report for any scheduled VA medical examination may impact the determination made. 38 C.F.R. § 3.655. She is also advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.