Citation Nr: 22052011 Decision Date: 09/13/22 Archive Date: 09/13/22 DOCKET NO. 16-25 673 DATE: September 13, 2022 REMANDED Entitlement to a rating in excess of 40 percent from July 17, 2014, to December 11, 2019, for service-connected low back disability is remanded. Entitlement to a rating in excess of 20 percent from December 11, 2019, for service-connected low back disability is remanded. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1987 to July 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a May 2019 hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In November 2020, in May 2021, and again in January 2022, the Board remanded the appeal for additional development. In a March 2022 rating decision, the RO increased the initial rating for lumbar spine disability to 40 percent prior to December 11, 2019, the date of a VA examination. In a corresponding supplemental statement of the case (SSOC), the RO continued the denial of a rating in excess of 20 percent for low back disability from December 11, 2019. The Veteran is seeking higher rating for his lumbar spine disability throughout the pendency of the appeal. Next, the Board notes that during the pendency of the appeal, a January 2021 rating decision granted separate 10 percent ratings for radiculopathy of each lower extremity as secondary to service-connected lumbar spine disability from July 17, 2014, the date of receipt of his initial claim. The Board has considered the Court of Appeals of Veteran's Claims (the Court) holding in Chavis v. McDonough, that an increased rating claim for spine disability in certain circumstances may entail an implied claim for an increased rating for radiculopathy, which the claimant has not specifically raised in a notice of disagreement. Id., 34 Vet. App. 1 (2021). As an initial point, the Court acknowledged that it was not holding that the issue of higher evaluations for radiculopathy are always part of claims seeking higher evaluations for the underlying spine disability. See id. at FN17. Thus, it is not a hard and fast rule that the Board must consider increased ratings for radiculopathy in all increased rating spine cases. The issue then becomes whether this case is so analogous to Chavis as to mandate a review of the ratings assigned for the Veteran's radiculopathy. The Board finds that for the reasons elaborated below, this case is sufficiently distinguishable from Chavis that radiculopathy need not be considered in this appeal. Foremost, Chavis involved a pro se appellant, unlike here, where the Veteran is an attorney and is represented by an accredited veterans' services organization. The Court took special notice that a major, if not the main, reason that radiculopathy was on appeal in Chavis was on account of VA's duty to sympathetically construe broadly worded, pro se filings. This is clearly not the case here. The next reason the Court provided in Chavis was the "progression" of the Veteran's neurologic impairment. Conversely, here, in a January 2021 rating action, the RO granted separate 10 percent ratings for radiculopathy of the right and left sciatic nerves. Here, and distinct from Chavis, neither the Veteran nor his representative have provided any disagreement or any discussion of severity of sciatic nerve pain since that rating decision. As such, the Board does not find the requisite "progression" to be present in this case. Therefore, the Board finds that the initial rating assigned for radiculopathy is not before the Board as part of the appeal of the initial rating for his service-connected low back disability. The Veteran is remined, however, that should the severity of his radiculopathy become worse, he may at any time file a supplemental claim for an increased rating. Lastly, the Veteran's former representative asserted that the Veteran's lumbar spine disability impacts his ability to work during the pendency of the appeal. See Appellate Brief (May 2022). As such, the Board finds that a claim for TDIU due to service-connected disabilities has been reasonably raised by the record and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Though the RO previously denied the claim for entitlement to TDIU in a February 2019 rating decision, the Board finds that the issue is part of the Veteran's claim for an increased rating for his lumbar spine disability and is included in the remand portion. 1. Entitlement to a rating in excess of 40 percent from July 17, 2014, to December 11, 2019, for service-connected low back disability is remanded. 2. Entitlement to a rating in excess of 20 percent from December 11, 2019, for service-connected low back disability is remanded. The Veteran contends that he is entitled to a higher rating for lumbar spine disability due to "the pain and suffering he has to experience on a daily basis." See NOD (July 2015). He testified that the frequency of his pain had more than doubled, and he slept in a recliner rather than his bed. See Hearing Transcript (May 2019). To ensure that VA has met its duty to assist, the Board finds that another remand is necessary prior to final adjudication of the Veteran's claims to obtain additional VA medical examinations and/or opinions. Although the requested examinations and retrospective opinion were obtained, there has not been substantial compliance with the remand directives; as such, remand is again required. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). The Board most recently remanded the issues in order to provide the Veteran with a new VA examination to determine the current severity of the Veteran's lumbosacral strain during the appeal period, to include obtaining a retrospective medical opinion to supplement the May 2015 VA examination report in this matter. See BVA Remand (January 2022). Pursuant to the remand instructions, the record now contains a February 2022 VA back examination and a March 2022 retrospective medical opinion obtained to supplement the May 2015 VA examination report; however, the Board finds that the recorded findings are inadequate for adjudication purposes. First, the findings from the February 2, 2022 VA back examination compared with those contained in a February 11, 2022 addendum VA medical opinion from the same VA examiner contain inconsistent findings with non-weightbearing range of motion (ROM) and may have resulted in a confusing outcome. In the remarks section (17A) of the February 2022 VA examination, the VA examiner recorded non-weightbearing ROM results from both active and passive motion. With Non-weightbearing on active range of motion, the Veteran had flexion limited to 60 degrees, extension limited to 30 degrees, right flexion limited to 20 degrees, left flexion limited to 10 degrees, right rotation limited to 30 degrees, and left rotation limited to 25 degrees, and on passive range of motion, the Veteran had flexion limited to 60 degrees, extension limited to 30 degrees, right flexion limited to 20 degrees, left flexion limited to 10 degrees, right rotation limited to 30 degrees, and left rotation limited to 25 degrees. In an addendum request, the RO noted that the VA examiner "did not provide the information requested for the retrospective opinion (estimated ROM) as per remand directives. ROM for weight-bearing is not of exam record. The examiner only noted Non-weight bearing." In a February 11, 2022 addendum response, the VA examiner provided both weightbearing and non-weightbearing, and noted that "[a]s marked in the original exam under the Remarks section" but recorded wholly different non-weightbearing ROM results from those shown in the February 2, 2022 VA examination. The February 11, 2022 addendum shows that in non-weightbearing on active ROM, the Veteran had flexion limited to 30 degrees, and in non-weightbearing on passive ROM, the Veteran had flexion limited to 10 degrees. The VA examiner did not indicate that these results supplemented the May 2015 VA examination report nor made any discussion of retrospective opinion or rational, and subsequently, the RO found that VA examiner again did not provide the requested addendum retrospective opinion to supplement May 2015 VA examination. See Exam Request (February 15, 2022). This strongly supports that the February 11, 2022 findings were recorded in conjunction with the February 2022 VA examination and not to supplement the May 2015 VA examination (despite the RO later use of those February 11, 2022 results to support the increased rating to 40 percent for the period prior to December 11, 2019). No clarification was sought to reconcile the discrepancies in the results for non-weightbearing ROM recorded in the February 2, 2022 VA examination compared to those shown in the February 11, 2022 addendum. Second, since the March 2022 VA retrospective medical opinion obtained to supplement the May 2015 VA examination report was based on the inconsistent findings noted above, it is also rendered inadequate in its present form. In this regard, the March 2022 VA examiner stated that the "most recent exam most accurately reflects Veteran's current level of severity" for providing retrospective estimates on degree of ROM loss due to pain both in weightbearing and non-weightbearing, and both on passive and active range of motions. Given that clarification is needed concerning the February 2022 findings for non-weightbearing ROM, it impacts the adequacy of the March 2022 VA retrospective medical opinion. Based on the foregoing, a remand is again necessary to determine the current severity of the Veteran's lumbar spine disability throughout the pendency of the appeal. On remand, addendum medical opinions should be obtained that reconciles the non-weightbearing ROM findings in the February 2, 2022 VA examination with the February 11, 2022 addendum and provides a clarifying retrospective medical opinion to supplement the May 2015 VA examination report in this matter. 3. Entitlement to a TDIU is remanded. As discussed above, a claim for TDIU has been raised by the record and considered part and parcel to the increased rating decision pending on appeal. See Rice, 22 Vet. App. at 447. A remand is needed to ask the Veteran to provide another VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, so he can provide updated information regarding his work history. The Veteran last submitted a VA Form 21-8940 in July 2018, and at that time, he reported that he had been unable to work since November 2016. More recent VA treatment records show that the Veteran obtain a new job as a mine worker at Morton Salt in October 2020 and indicated that he was still working as of November 2021. See CAPRI (February 2022). On remand, the Veteran should be asked to complete and return another VA Form 21-8940 to afford the Veteran an opportunity to submit an updated work history information. The matters are REMANDED for the following action: 1. Ask the Veteran to complete an updated TDIU claim form (VA Form 21-8940) and conduct appropriate development. 2. Obtain the Veteran's VA treatment records for the period from February 2022 to the Present. 3. Obtain an addendum medical opinion to the February 2022 VA examination with addendum medical statements from an appropriate clinician to determine the severity of the Veteran's lumbar spine disability. If it is not possible to provide a specific measurement without speculation, the clinician 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 clinician (does not have the knowledge or training). The examiner should address the following for the February 2022 VA back examination: (a.) Estimate the amount in degrees of ROM lost due to pain in non-weight bearing positions, and on both active and passive motion based passive motion based on the findings from the February 2, 2022 VA examination and the Veteran's statements. (b.) Reconcile the discrepancy between the findings recorded in the February 2, 2022 VA back examination and the February 11, 2022 addendum concerning non-weightbearing ROM results. The examiner should provide retrospective opinion to supplement the May 2015 VA back examination: (c.) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements, to include his reports of pain with walking and standing and sleeping in recliner because of back pain at night. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.M. 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.