Citation Nr: 22017629 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-56 365 DATE: March 25, 2022 ORDER From December 19, 2012, an initial increased rating of 40 percent for a service-connected back disability is granted. REMANDED An initial increased rating in excess of 40 percent for a service-connected back disability is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT From December 19, 2012, the Veteran's service-connected back disability most closely approximated forward flexion of the thoracolumbar spine of 30 degrees or less. CONCLUSION OF LAW From December 19, 2012, the criteria for an initial increased rating of 40 percent for a service-connected back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.24, 4.71a Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at a June 2020 Board virtual hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. The Board notes that the issue of a TDIU has been raised during the appeal period. See June 2020 Hearing Transcript. As such, the issue is considered part and parcel of the Veteran's pending claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). From December 19, 2012, an initial increased rating of 40 percent for a service-connected back disability is granted. The Veteran believes that an increased rating for a service-connected back disability is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. §§ 3.321(a), 4.1, 4.21. When evaluating a claim for an increased rating, the benefit of the doubt goes to the veteran. See 38 C.F.R. § 4.3. When there is a doubt as to which of two evaluations should be assigned, the higher evaluation is used if the disability more nearly approximates the criteria required for that rating. See 38 C.F.R. § 4.7. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, a rating of 40 percent is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. Medical records from 2010 showed forward flexion to 25 degrees. See May 2019 Medical Treatment Record. In February 2013, the Veteran reported for a VA examination. Something went wrong during the examination, and the Veteran was taken to the emergency room. See March 2014 CAPRI. The Veteran and his brother reported that the emergency room visit was due to the Veteran collapsing in pain while being forced to perform forward flexion range of motion testing. The Veteran had tried to perform the test, but the back went out and the Veteran started yelling because of severe pain. The back had felt like it snapped, and the Veteran could not get up. Prior to the injury, the Veteran had told the examiner that he was not able to perform the test. See October 2017 Form 9; May 2019 Correspondence; May 2019 Buddy / Lay Statement. A May 2013 VA examination did not provide range of motion results for forward flexion. The examination stated that the Veteran refused to perform the test. Back pain was found to worsen when the Veteran bent forward. See May 2013 VA Examination. The Veteran reported that he tried his best on the range of motion testing but would not allow himself to get injured again. The range of motion testing caused him to feel a pulling in the back, at which point he stopped. See May 2019 Correspondence. Medical records from 2014 showed that the Veteran's chronic back pain was exacerbated by motion and activity. Medical records from 2015 showed that the Veteran's back pain worsened with mobility and that the back pain in general was chronic and unrelenting. See September 2017 CAPRI. A March 2014 VA examination did not provide range of motion results for forward flexion. The examination stated that the Veteran would not attempt the test. The Veteran reported that if he performed range of motion testing, increased back pain would occur and the Veteran would end up on the floor in pain. The Veteran grimaced even when just sitting and with minimal motion during the examination. The back pain had worsened over the years. See April 2014 CAPRI. Medical records from 2019 showed forward flexion to 15 degrees with pain. See May 2019 Medical Treatment Record. In 2020, the Veteran reported that the back disability had worsened over the years. See June 2020 Hearing Transcript. The Board finds the Veteran and his brother competent to provide the above lay statements. The Board finds their lay statements credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board gives this evidence great probative value. Based on the evidence of record, the Board gives the Veteran the benefit of the doubt and finds that from December 19, 2012, the Veteran's back disability most closely approximated a 40 percent rating. Specifically, prior to December 19, 2012, the Veteran's forward flexion was 25 degrees; in 2013, an attempt to perform forward flexion range of motion testing caused so much pain that the Veteran had to be taken to the emergency room; the Veteran's back pain was aggravated by motion and activity; in 2019, the Veteran's forward flexion had decreased to 15 degrees with pain; and the Veteran's back disability had progressively worsened over the years. The Board is currently unable to determine whether a higher rating is warranted as shown further below. Therefore, from December 19, 2012, an initial rating of 40 percent for a service-connected back disability is granted. REASONS FOR REMAND 1. An initial increased rating in excess of 40 percent for a service-connected back disability is remanded. The Veteran believes that an increased rating for a service-connected back disability is warranted. The Veteran has undergone multiple VA examinations during the appeal period. See May 2013 VA Examination; March 2014 CAPRI; April 2014 CAPRI. However, none of the VA examinations considered the ameliorative effects of medication when evaluating the severity of the back disability. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (when a Diagnostic Code is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication). Additionally, none of the VA examinations were able to consider all the relevant evidence of record. Specifically, none of the VA examinations considered medical records during the appeal period appearing to show radiculopathy. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); May 2019 Medical Treatment Record; September 2017 CAPRI. For these reasons, among others, a remand is needed for a VA examination to address the entire appeal period. 2. A TDIU is remanded. The Board finds that the TDIU issue is inextricably intertwined with the other issue being remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994). As favorable action on the other issue being remanded could potentially result in the award of a TDIU, the TDIU issue is deferred until the requested development has been completed. Id. The matter is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any relevant outstanding private and/or VA treatment records from December 2012 to the present. After obtaining any necessary authorizations from the Veteran, make all reasonable attempts to obtain the outstanding records in accordance with 38 C.F.R. § 3.159. 2. Update VA and private treatment records. VA treatment records appear current up to March 2017. 3. Provide the Veteran with a VA Form 21-8940 with instructions that a complete employment history should be provided to assist with the adjudication of the TDIU issue. 4. Schedule one or more appropriate VA examinations to determine the nature and severity of the service-connected back disability throughout the entire appeal period (i.e., since December 2012). This should include, but is not limited to, any muscle injuries and any neurological impairment, such as radiculopathy. The claims file and a copy of this Remand should be made available to and should be reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected back disability throughout the entire appeal period (i.e., since December 2012). This should include, but is not limited to, any muscle injuries and any neurological impairments, such as radiculopathy. The severity of any muscle injuries (i.e., slight, moderate, moderately severe, or severe) and the severity of any neurological impairments (i.e., mild, moderate, severe incomplete paralysis, or complete paralysis of the affected nerves) should be assessed. Identify the specific muscle groups associated with any muscle injuries and identify the specific nerves associated with any neurological impairments. This should also include all symptoms and related impairment that would have been present without the relief provided by medications to treat the disability and all symptoms and related impairment occurring after repeated use over time and/or during flare-ups. For each of the following, the examiner should report all the time periods throughout the appeal period (i.e., since December 2012), in which they existed (or would have existed without the relief provided by medications used to treat the back disability), including after repeated use over time and/or during flare-ups: (A) Unfavorable ankylosis of the entire spine or the functional equivalent. (B) Unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) Lay reports, which include information about pain, electric sensation, weakness, and numbness in the legs; pain causing the Veteran to wet himself; swelling; difficulty moving; and the need to lay down often due to back pain. See June 2020 Hearing Transcript; May 2019 Correspondence; May 2019 Buddy / Lay Statement; May 2019 Correspondence; October 2017 Form 9; January 2014 Correspondence; November 2013 Statement in Support of Claim; December 2012 Correspondence; December 2012 Statement in Support of Claim. (2) Medical records showing worsening back pain while being upright for any amount of time and the need to lay down all the time. There was numbness in the legs and hips. See May 2019 Medical Treatment Record. (3) Medical records showing bilateral leg pain and numbness throughout the appeal period. Pain radiated into the bilateral gluteal areas. There appeared to be some muscle weakness and decreased reflexes. Id. (4) Medical records showing narcotic pain medication, bilateral lower extremity numbness and tingling, left hip burning, right hip pain, pain radiating to the right leg, and a history of left lower extremity radiculitis/radiculopathy. Back pain got worse with mobility and motion and was chronic and unrelenting, causing the Veteran to spend a lot of time in bed. Other medications are listed. See September 2017 CAPRI. (5) A VA examination showing bilateral ankle reflexes at 1+ and bilateral leg numbness. Sitting, standing, or moving resulted in worsening back pain. See April 2014 CAPRI. (6) All other relevant lay and medical evidence. A complete and clear rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. The Veteran and others are competent to attest to factual matters of which they have first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and/or others, the examiner should provide a fully reasoned explanation. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's medical knowledge or due to the limits of the examiner's medical knowledge. 5. Readjudicate the issues on appeal. The AOJ should consider separate ratings under any diagnostic code or by analogous rating, if warranted by the evidence of record. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.