Citation Nr: 22028362 Decision Date: 05/12/22 Archive Date: 05/12/22 DOCKET NO. 19-26 618 DATE: May 12, 2022 REMANDED Entitlement to service connection for acid reflux, to include as secondary to posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for constipation, to include as secondary to a service-connected disability, is remanded. From August 11, 2020, entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine is remanded. From July 24, 2013, entitlement to a rating higher than 10 percent for radiculopathy of the bilateral lower extremities (sciatic nerve) is remanded. Prior to May 21, 2021, entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1963 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2015 and May 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2017 decision, the Board granted service connection degenerative disc disease of the lumbar spine, with associated radicular symptoms in the bilateral lower extremities. In a May 2017 rating decision, the Agency of Original Jurisdiction (AOJ) implemented the Board's grant of service connection and assigned initial ratings, which is the rating decision on appeal. In February 2020, the Board remanded the issues of degenerative disc disease of the lumbar spine and radiculopathy of the bilateral lower extremities for further development. In a separate December 2019 decision, the Board issued a decision which denied service connection for bilateral ankle disability; acid reflux; sleep apnea; constipation; and granted earlier effective date for tinnitus. In October 2020, the Veteran appealed the portion of the Board's December 2019 decision that denied service connection for acid reflux and constipation, both to include secondary basis, to the United States Court of Appeals for Veteran Claims (Court) which granted a Joint Motion for Partial Remand (JMPR) filed by the parties. As part of the motion, the Veteran expressly waived his appeal to those parts of the Board's December 2019 decision that denied entitlement to service connection claims for bilateral ankle disability and sleep apnea, both to include on a secondary basis. The Appellant also indicated the Board's grant for tinnitus was not to be disturbed. Thus, the Court dismissed the appeal with respect to those issues not argued on appeal. Pursuant to a JMPR, in an October 2020 Order, the Court vacated, in part, the Board's December 2019 decision that denied entitlement to service connection for acid reflux and constipation, both to include on a secondary basis, and remanded the matters to the Board consistent with the terms of the joint motion. The issues of entitlement to service connection for acid reflux and constipation and entitlement to a TDIU were remanded by the Board in March 2021. In a March 2021 decision, the Board denied entitlement to an initial rating in excess of 10 percent prior to August 11, 2020, and in excess of 20 percent for the lumbar spine, and entitlement to initial compensable ratings prior to July 24, 2013, and in excess of 10 for radiculopathy (sciatic nerve) of the bilateral lower extremities. The Veteran appealed the March 2021 Board decision to the Court and in a November 2021 JMPR, the portions of the March 2021 Board decision denying a rating higher than 20 percent from August 11, 2020, for the Veteran's lumbar spine and denying a rating higher than 10 percent from July 24, 2013, for the bilateral lower extremities were vacated and remanded back to the Board for development consistent with the JMPR. The JMPR specifically noted that the Veteran did not appeal the Board's dismissal of entitlement to service connection for a bilateral ankle disability and sleep apnea, an earlier effective date for tinnitus, and denial of entitlement to an initial rating in excess of 10 percent, prior to August 11, 2020, for the lumbar spine and denial of entitlement to initial compensable, rating prior to July 24, 2013, for bilateral lower extremity radiculopathy (sciatic nerve). As such, the issues on appeal have been recharacterized accordingly. Additionally, the Board notes that the RO granted entitlement to a TDIU, effective May 21, 2021. Because the RO did not grant entitlement to a TDIU for the entire period on appeal, the issue of entitlement to TDIU, prior to May 21, 2021, is properly before the Board. See Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Entitlement to service connection for acid reflux, to include as secondary to PTSD. 2. Entitlement to service connection for constipation, to include as secondary to a service-connected disability. The Veteran seeks entitlement to service connection for acid reflux and constipation. These issues were the subject of an October 2020 JMPR and remanded by the Board for further development in March 2021. To date, the development directed by the Board in the March 2021 remand has not been completed for either issue. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran submitted a statement in March 2021 stating, "I would like you for you to remove sleep apnea from my record. Also, acid reflux, I don't need it." Of note, the issue of entitlement to sleep apnea was dismissed in the March 2021 Board decision. The Veteran's March 2021 statement appears to be a withdrawal of the issue of entitlement to service connection for acid reflux, however, the Veteran's attorney has subsequently requested status updates on the issue in September 2021 and April 2022. The Board finds it is unclear whether the Veteran wishes to continue with the appeal. On remand, the RO should clarify whether the Veteran wishes to continue with his appeal for entitlement to service connection for acid reflux, and if so, the RO should undertake the development directed in the March 2021 Board remand. All development directed by the Board for the issue of entitlement to service connection for constipation should also be completed. 3. From August 11, 2020, entitlement to a rating in excess of 20 percent for DDD of the lumbar spine. In the December 2021 JMPR, the parties found that the August 2020 VA examiner who evaluated the severity of the Veteran's lumbar spine disability failed to reconcile contradictory findings. Specifically, while the examiner noted that pain caused functional loss during flares and repeated use over time and that Veteran's reports of functional loss during flares/repeated use were consistent with examination, it is unclear why the examiner reported the same degree of range of motion during flares and on repeated use over time as initial range of motion when he noted that the initial range of motion was abnormal and that it did not contribute to functional loss. Furthermore, the examiner stated that passive range of motion testing could not be conducted but did not explain why such could not be performed or was not medically appropriate. The Board notes that, after the March 2021 denial but before the issuance of the JMPR, the Veteran was afforded a thoracolumbar spine examination in November 2021. While the examiner provided a thorough evaluation and opinion, the Board nevertheless finds that an addendum opinion must be obtained in order to remedy the deficiencies identified in the JMPR. In this regard, upon examination, the Veteran denied flare-ups in November 2021, as he did in the June 2019 examination. However, as was highlighted in the JMPR, at the August 2020 examination the Veteran definitively endorsed flare-ups of his lower back pain, which was noted to cause functional loss. Accordingly, an examiner should attempt to reconcile the findings of the August 2020 examination and address whether and when the Veteran has suffered from flare-ups, and also provide, for any such periods of time, the estimated functional loss from such flare-ups. 4. From July 24, 2013, entitlement to a rating higher than 10 percent for radiculopathy of the bilateral lower extremities (sciatic nerve). As noted, the JMPR indicates the portion of the March 2021 Board decision denying entitlement to a rating higher than 10 percent for radiculopathy of the bilateral lower extremities, from July 24, 2013, was vacated, however, the Board's denial of a compensable rating for this issue, prior to July 24, 2013, remains denied. The issue remaining on appeal has been recharacterized accordingly. The JMPR indicates that the Board erred in not discussing whether the Veteran was entitled to separate ratings for the femoral nerves, as medical evidence indicates their involvement. Importantly, the RO granted separate ratings for the femoral and internal saphenous nerves, bilaterally, effective August 2020, which is a portion of the appeal period. The claim for an increased rating for radiculopathy of the bilateral lower extremities is inextricably intertwined with the claim for an increased rating for the lumbar spine, as an examination for that disability may provide further evidence relating to the current severity of the Veteran's bilateral radiculopathy. As such, this claim must also be remanded pending development conducted on remand. 5. Prior to May 21, 2021, entitlement to a TDIU. As noted, entitlement to a TDIU was granted, effective May 2021, which is a portion of the appeal period. The Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the other issues being remanded on appeal. Therefore, the Board finds that a decision on the TDIU issue should be deferred until the development ordered is completed. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Clarify whether the Veteran wishes to withdraw from appeal the claim of entitlement to service connection for acid reflux. If so, ask him to submit a signed written statement to this effect, which includes all necessary information to withdraw a claim, to include a signed statement. 3. As directed in the March 2021 Board remand, obtain medical opinions from a qualified medical professional to determine the nature and etiology of the Veteran's claimed acid reflux (if he continues with the appeal) and constipation. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide opinions on the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed acid reflux is proximately due to his PTSD, to include medications taken for treatment of his service-connected disabilities? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed constipation is is proximately due to his PTSD, to include medications taken for treatment of his service-connected disabilities? c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed acid reflux is aggravated (beyond a natural progression) by his PTSD, to include medications taken for treatment of his service-connected disabilities? d) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed constipation is aggravated (beyond a natural progression) by his PTSD, to include medications taken for treatment of his service-connected disabilities? e) In rendering the opinions, the examiner is asked to consider medical and lay evidence of record, including medical articles submitted by the Veteran on PTSD. A complete rationale for all opinions is requested 4. Forward the record, to include a copy of this Remand, to an appropriate VA clinician to obtain an addendum opinion addressing the Veteran's reports regarding flare-ups of his low back disability. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Following a review of the record and any examination deemed necessary, the examiner should offer comments and an opinion regarding the following conflicting information provided during the August 2020 VA examination: while the examiner noted that pain caused functional loss during flares and repeated use over time, and the Veteran's reports of functional loss during flares/repeated use were consistent with examination, why was the Veteran reported to have the same degree of range of motion during flares and on repeated use over time as his initial range of motion, when he noted that initial range of motion was abnormal and that it did not contribute to functional loss. If the examiner determines that the degree of range of motion during flares and on repeated use over time as reported in the August 2020 VA examination were incorrect, based on relevant information elicited from the Veteran, review of the file, and examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares and on repeated use over time in August 2020 expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. Finally, the examiner is asked to offer comments and an opinion as to why the August 2020 VA examiner indicated passive range of motion could not be performed or was not medically appropriate. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.