Citation Nr: 23015505 Decision Date: 03/15/23 Archive Date: 03/15/23 DOCKET NO. 17-02 904 DATE: March 15, 2023 REMANDED Prior to October 10, 2019, entitlement to a rating higher than 10 percent for the low back disability is remanded. Beginning October 10, 2019, entitlement to a rating higher than 20 percent for the low back disability is remanded. Prior to July 21, 2022, entitlement to a rating higher than 10 percent for the right lower extremity radiculopathy is remanded. Beginning July 21, 2022, entitlement to a rating higher than 20 percent for the right lower extremity radiculopathy is remanded. Prior to July 21, 2022, entitlement to a rating higher than 10 percent for the left lower extremity radiculopathy is remanded. Beginning July 21, 2022, entitlement to a rating higher than 20 percent for the left lower extremity radiculopathy is remanded. Prior to April 10, 2013, entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1999 to September 2003 and from January 2004 to January 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has not requested a hearing in this case. 1. Prior to October 10, 2019, entitlement to a rating higher than 10 percent for the low back disability is remanded; and 2. Beginning October 10, 2019, entitlement to a rating higher than 20 percent for the low back disability is remanded. In the September 2021 decision, the Board remanded the claim to obtain an adequate medical opinion regarding the Veteran's low back flare ups. Specifically, the March 2014 and January 2017 VA examination reports were inadequate; therefore, the Board remanded to obtain an adequate VA examination. Subsequently, the Veteran was afforded a VA examination in October 2019; however, the VA examiner found there were no flareups despite the Veteran seeking medical treatment at the emergency room and reporting that her back pain increased if she sat or stood for more than 45 minutes. An addendum opinion was obtained in October 2021 regarding the Veteran's flareups. First, the examiner provided a negative nexus opinion, indicating that the back disability had onset ten years after service. Additionally, the examiner indicated that a flareup was defined as a sudden onset of back problems so severe that the Veteran had to go to the "ER or seek emergency medical assistance." Although the Veteran had sought treatment at the ER several times, the examiner also indicated that the Veteran did not meet this definition of a flare up because she did not receive injected pain killers. This opinion was also inadequate as the examiner used a definition of flare up that was inconsistent with the Board's definition. Thus, the March 2022 Board decision found the October 2021 VA addendum opinion to be inadequate. The Board again remanded these claims to afford the Veteran a new VA examination to include a clarifying opinion on the inconsistent evaluations for the Veteran's flareups and to obtain a retrospective opinion on whether there was additional limitation of motion during flareups or with repeated use over time from April 10, 2012 (the date of claim). Additionally, the Board directed that any associated neurological disabilities, to include right and left lower extremity radiculopathy, be evaluated as part of the increased rating claim for the back disability. See 38 C.F.R. § 4.124a, Diagnostic Codes 5242, 5243, Note 1. An additional VA examination and addendum opinion was obtained in July 2022. The examiner, a physician, stated the Veteran's diagnosed lumbar spine degenerative disc disease (DDD) with coccydynia was the same as her past diagnosis. The examiner noted the Veteran did not provide evidence of emergency room visits and only provided a CT scan from a private urologist. The examiner encouraged the Veteran to submit the additional emergency room records. The July 2022 VA addendum opinion is inadequate to decide the claim as it addressed none of the Board's inquiries. The RO obtained another addendum VA medical opinion in December 2022. The examiner, a nurse practitioner, noted the Veteran had a diagnosis of lumbar spine DDD with coccydynia since 1999. The Veteran's medical history indicated she had been treated in the emergency room four times since 2019 and was treated at a pain center since 2018. The Veteran reported her flareups occurred every six months and lasted for 24 hours. The flareups were precipitated by stress and underlying conditions and alleviated by treatment at the emergency room or pain center. Her pain during a flareup was 10/10 on a 10 point pain scale with 10 being the most painful. The Veteran reported her functional loss included seizures, severe pain, and termination of employment. The examiner noted the medical history did not indicate any flare ups. Specifically, the medical history merely noted daily pain which worsened with sitting or standing for more than 45 minutes. The December 2022 examiner explained the symptoms of a chronic musculoskeletal condition fluctuate throughout the day or week, but overall remain relatively consistent over time, except during flareups. The examiner noted that a flareup is generally regarded as any temporary or recurring significant increase in symptoms or complaints associated with the condition beyond the normal course of the condition. Thus, the examiner concluded that the October 2019 VA examiner did not find a flare ups because the Veteran's description of daily pain that increased with prolonged sitting or standing was not, in fact, a flareup. Instead, these daily events were merely the normal fluctuations of a chronic musculoskeletal disability. Thus, the October 2019 examiner indicated that there were no flareups. The examiner also noted that the July 2022 VA examination report noted the additional loss of range of motion during a flareup. The examiner repeated that the July 2022 examiner reported range of motion of forward flexion to 65 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees each, and right and left lateral rotation to 10 degrees each. Factors included pain and weakness. The examiner indicated that these measurements were the Veteran's most recent measurements of functional loss due to flareups. After reviewing the conflicting evidence and the multiple addendum medical opinions that attempt to clarify the internally inconsistent findings of the October 2019 examination report, no further attempts to clarify this examination are necessary. The examiners' addendum opinions that limit the definition of flareups have created unnecessary confusion and are non-dispositive. Regardless of whether the Veteran's daily symptoms meet the definition of a flareup, the Veteran has experienced flareups of the low back disability that required her to seek emergency medical care in the last few years. Furthermore, in as much as the VA examiner found no flareups at the October 2019 examination, the Board has already found this examination to be inadequate to decide the claim for other reasons. See, e.g., Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). In so much as the examination does not support a higher rating, the October 2019 examination and subsequent clarifying opinions are not probative. To accurately rate the Veteran's low back disability, the Board requires estimated or actual range of motion measurements (in degrees) when her low back disability is at its most severe (during a flareup), to include when she has gone to the emergency room for low back pain, and after repeated use over time. If the medical records are not sufficient for the examiner to provide an estimated range of motion measurement, the examiner should conduct an informational interview with the Veteran and ask her to describe her functional loss and range of motion when she has a flareup and after repeated use over time of the low back disability. In addition, the Board finds the July 2022 VA medical opinion to be inadequate. No retrospective opinion was provided for the period on appeal beginning April 10, 2012 as previously directed by the Board. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand orders. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Thus, on remand, the RO should obtain the retrospective opinion as directed. 3. Prior to July 21, 2022, entitlement to a rating higher than 10 percent for the right lower extremity radiculopathy is remanded; 4. Beginning July 21, 2022, entitlement to a rating higher than 20 percent for the right lower extremity radiculopathy is remanded; 1. 5. Prior to July 21, 2022, entitlement to a rating higher than 10 percent for the left lower extremity radiculopathy is remanded. 6. Beginning July 21, 2022, entitlement to a rating higher than 20 percent for the left lower extremity radiculopathy is remanded. As directed by the March 2022 Board decision, the Veteran's right and left lower extremity radiculopathy were evaluated. While on remand, the RO issued an August 2022 rating decision which assigned a 20 percent rating for each lower extremity, effective July 21, 2022. As discussed in the prior Board decisions, the low back disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5243. Under these Diagnostic Codes, note (1) specifically directs that any associated neurological abnormalities should be evaluated under the appropriate diagnostic code. As directed by the Board, the RO evaluated the Veteran's current bilateral lower extremity radiculopathy symptoms and assigned a higher rating. However, the RO did not evaluate the entire period on appeal and adjudicate whether a higher rating was warranted for the bilateral lower extremities prior to July 21, 2022. Furthermore, the RO failed to include the radiculopathy in the supplemental statement of the case (SSOC) before returning the increased rating claim for the back to the Board. Due to the procedural history of this claim, the Board may not finally adjudicate the increased rating claims for the neurological manifestations of the back disability without the RO initially considering the evidence for the entire period on appeal, as to do so could potentially strip the Veteran of her statutorily provided "one review on appeal to the Secretary." See 38 U.S.C. § 7104(a); see also Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003). Thus, on remand, the RO should issue an SSOC to address whether a rating higher than 10 percent is warranted for the right and left lower extremity radiculopathies prior to July 21, 2022 and higher than 20 percent thereafter. 7. Prior to April 10, 2013, entitlement to a TDIU is remanded. In the March 2022 decision, the Board denied entitlement to a TDIU beginning April 10, 2013. Thus, entitlement to a TDIU prior to April 10, 2013 remains on appeal. Nevertheless, a decision on whether the Veteran is entitled to a TDIU prior to April 10, 2013 is premature because a decision on the increased rating claims being remanded herein could significantly impact the adjudication of the TDIU. Therefore, the issues are inextricably intertwined. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Request the Veteran provide specific employment information for the entire appellate period prior to April 10, 2013, to include income information, dates of employment, employment responsibilities, and any other pertinent required information. 3. Obtain an additional VA medical opinion from an appropriate clinician as to the past and present nature and severity of the lumbar spine disability, to include the nature and severity of the neurological manifestations. Whether an additional physical examination is required is left to the discretion of the examiner. A copy of this remand in its entirety should be provided to the examiner, and it must be reviewed. After a thorough review of the claims file, the examiner should address the following: a) Beginning April 10, 2012, provide a retrospective opinion as to the additional limitation of motion of the low back disability during flareups or after repeated use over time, in degrees, if possible. If necessary to answer the Board's inquiries, conduct an informational interview with the Veteran to ascertain her functional loss throughout the duration of the appeal period, to include during flareups and after repeated use over time. The Veteran's lay statements describing her range of motion must be considered. If it is not possible to describe the Veteran's functional loss of range of motion throughout the appellate period, the examiner must provide a complete rationale as to why it is not possible. b) Beginning April 10, 2012, provide a retrospective opinion regarding the nature and severity of the right lower extremity and left lower extremity radiculopathy. If necessary to answer the Board's inquiries, conduct an informational interview with the Veteran to ascertain her functional loss throughout the duration of the appeal period. 4. Undertake any additional development necessary for the issue of entitlement to a TDIU prior to April 10, 2013. R. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harper, 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.