Citation Nr: 22016157 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 15-07 203 DATE: March 21, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent prior to December 13, 2021, for degenerative joint disease (DJD) of the lumbosacral spine (hereinafter "low back disability") is remanded. Entitlement to an initial rating in excess of 40 percent from December 13, 2021, for low back disability is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy from June 13, 2017, is remanded. Entitlement to an initial rating in excess of 10 percent prior to June 13, 2017, for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent from June 13, 2017, for left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND The Veteran had active service from October 1970 to May 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 and June 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were before the Board in September 2018 and August 2021. The Board remanded the matters for further development. In March 2018, the Veteran testified at a Board hearing before a Veterans Law Judge. The Veterans Law Judge who presided over the Board hearing is no longer employed by the Board. A transcript of the hearing is of record. In July 2020, the Veteran was notified that the Veterans Law Judge who conducted the March 2018 Board hearing was no longer employed by the Board and that the Veteran had the right to have another Board hearing. In July 2020 the Veteran responded that he wanted to have another hearing, and in August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is also of record. A December 2021 rating decision increased the evaluation of the Veteran's back disability from 10 to 40 percent effective December 13, 2021. As higher evaluations are available, the issue of entitlement to higher evaluations for the entire period on appeal remains. AB v. Brown, 6 Vet. App. 35, 38 (1998). In an April 2020 rating decision, the RO denied the Veteran's formal claim of raised by the Veteran during the pendency of the appeal for increased ratings for service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities. Pursuant to Rice v. Shinseki, 22Vet. App. 447 (2008) a TDIU claim is part of an increased rating claim when such claim is raised by the record. Thus, entitlement to a TDIU due to service-connected disability continues to be properly before the Board. 1. Entitlement to a rating in excess of 10 percent prior to December 13, 2021, and in excess of 40 percent from December 13, 2021 for the low back disability, is remanded. The examinations of record are not adequate to decide the claims. Pursuant to the August 2021 Board Remand, the Veteran was provided with a VA examination in December 2021. This examination is inadequate, as it in incomplete. Although the examiner found that all of the Veteran's range of motion testing showed pain, the examiner did not make a finding about whether any limitation of motion is specifically attributable to pain, weakness, fatigability, incoordination or other and did not note the degree(s) at which limitation of motion is specifically attributable to the factors identified or describe them. Also, the examiner found that the Veteran did not have ankylosis, however recently in Chavis v. McDonough, No. 18-2928 (April 16, 2021) the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. In Chavis, the Court additionally noted the definition of ankylosis as "complete limitation of motion." See Dorland's Illustrated Medical Dictionary at 94 (33d ed. 2019). Thus, an examiner must consider Chavis when addressing the issue of whether the Veteran has ankylosis, as well as address the private examination received in December 2021 in which the examiner stated that the Veteran's spine is fused, he was unable to complete range of motion testing, and that he has ankylosis. Further, VA examiner must consider this private examiner's assertion that the Veteran has intervertebral disc syndrome (IVDS) with at least six weeks of incapacitation during the past 12 months. A such, the December 2021 VA examination does not comply with the Board's August 2021 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The private examination received in December 2021 is not adequate to decide the claim. The examiner did not identify a diagnosed back disability. He reported reviewing the claims file but later reported only reviewing civilian records. The examiner stated that he was unable to perform any range of motion testing, but he did not fill out the boxes indicating why. When asked to estimate range of motion due to pain and/or functional loss during flare-ups or when the joint is used repeatedly over time, he wrote "fused" for all estimated range of motion measurements. He also appears to have included vascular claudication of the legs as a contributing factor of the back disability associated with limitation of motion, despite the fact that such disability is not service-connected. This examination is missing key information and is not thorough or detailed and includes non-service connected disabilities when evaluating the back. 2. Entitlement to an initial rating in excess of 20 percent for right lower extremity from June 13, 2017, is remanded. As the right lower extremity radiculopathy is a neurological abnormality associated with the low back disability, the development for the low back disorder may provide relevant evidence to the Veteran's right lower extremity radiculopathy claims. 3. Entitlement to an initial rating in excess of 10 percent prior to June 13, 2017, and in excess of 20 percent from June 13, 2017, for left lower extremity radiculopathy is remanded. Likewise, as the left lower extremity radiculopathy is a neurological abnormality associated with the low back disability, the issue of entitlement to an initial higher rating for left lower extremity radiculopathy the development for the low back disorder may provide relevant evidence to the Veteran's left lower extremity radiculopathy claims. 4. Entitlement to a TDIU due to service-connected disability is remanded. Additionally, as the VA examinations for the back and associated bilateral lower extremities will address the functional effects of such disabilities, the issues are inextricably intertwined, thus this issue must also be remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records for the period. 2. Schedule the Veteran for an in-person medical examination to determine the current severity of his service-connected low back and bilateral lower extremity radiculopathy disabilities. For the lumbar spine disability, 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 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). With regard to ankylosis, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. The definition of ankylosis as "complete limitation of motion." The examiner must determine whether the Veteran has ankylosis based on these criteria. Why or why not? The examiner is asked to address the private examination report received in December 2021, and the examiner's finding that the Veteran has unfavorable ankylosis of the entire spine as well as IVDS with at least six prior weeks of incapacitation in the prior 12 months. The examiner is asked to address the Veteran's functional limitations in detail. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Leary, Susan 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.