Citation Nr: 23027285 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 12-08 349 DATE: May 8, 2023 REMANDED Entitlement to a rating in excess of 10 percent prior to March 31, 2010, and a rating in excess of 20 percent, from March 31, 2010, for degenerative disc disease of the lumbar spine is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1967 to May 1970. The Veteran died in January 2015. The Appellant is the Veteran's surviving spouse who has successfully substituted as appellant on the Veteran's claims pending at the time of his death, for purposes of entitlement to any benefits owed at the time of death. In an October 2020 decision, the Board of Veterans' Appeals (Board) granted increased ratings (less than the maximum allowable schedular ratings) for all three disabilities on appeal. The Appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated the Board's October 2020 decision to the extent the Board denied ratings in excess of those granted, and remanded this matter to the Board for further action consistent with the JMPR. In a January 2022 decision, the Board denied higher ratings for the issues on appeal. The Appellant appealed the Board's decision to the Court, and in January 2023, the Court granted the parties' Joint Motion for Remand (JMR), vacated the Board January 2022 decision, and remanded to the Board for further action consistent with the JMR. 1. Entitlement to a rating in excess of 10 percent prior to March 31, 2020, and a rating in excess of 20 percent, from March 31, 2010, for degenerative disc disease of the lumbar spine is remanded. 2. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. 3. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. The January 2023 JMR stated that in the August 2021 JMPR, the parties agreed that the Board failed to account for the examiner's notation that there was 75 percent additional limitation in the Veteran's range of motion (ROM) during flare-ups, and that the parties provided that "[s]ince the Veteran's flares limited his ROM by an additional 75 percent, his 90 degrees of forward flexion would be reduced by an additional 67.5 degrees, meaning his forward flexion ROM would be limited to 22.5 degrees during flares," and that the Board's conclusion that an additional limitation of 70-80 percent of the Veteran's base flexion of 72 degrees was 50 degrees, failed to account for the additional 70-80 percent limitation. The parties then instructed the Board to "adequately determine and discuss the evidence of additional limitation during flare-ups in determining the appropriate ratings for the Veteran's back condition prior to March 31, 2010, and thereafter." In the January 2023 JMR, the parties found that in the January 2022 decision, the Board acknowledged the statements in the JMPR, but determined that there were two ways to interpret the examiner's notation of the additional 75 percent of limitation, and that the "Board must determine which is the more likely interpretation based on the facts in evidence." The parties concluded that in making this determination, the Board (in the January 2022 decision) did not adequately address whether such a finding was consistent with the August 2021 JMPR's instructions, and that the Board's determination was based, in part, on the conclusion that the VA examination report in which it relied on was "unclear in its wording in that it does not specify which way the 'additional loss' of 75 percent should be interpreted, and it does not provide for specific degrees of loss," but the Board did not address whether further development was warranted to clarify the VA examiner's meaning of additional loss. The parties agreed that a remand was warranted for the Board to provide an adequate statement of reasons or bases for its determinations on the Veteran's limitations, addressing whether there was substantial compliance with previous JMPR instructions regarding the reported "additional loss," and whether further development is warranted. The Board finds that in the now vacated January 2022 Board decision, there was not substantial compliance with previous remand instructions regarding the reported "additional loss." In that regard, in the January 2022 decision, the Board erred in stating that "the notion of 75 percent loss could be read in two possible ways" because in the August 2021 JMPR, the parties agreed as to how the examiner's notation of an additional loss should be interpreted, stating that prior to March 31, 2010, based on the September 2009 VA examination, the Veteran's "forward flexion ROM would be limited to 22.5 degrees during flares." Additionally, the Board erred in not following this method of interpretation as spelled out by the parties in the JMPR, in determining the additional loss of motion during flare-ups as noted on the March 2010 VA examination. The Board therefore finds that further development is not warranted to determine the 2009 and 2010 examiner's notations regarding the additional loss of motion during flare-ups. Additionally, in the January 2023 JMR, the parties found that the Board failed to adequately respond to the Appellant's argument that the Board was required to provide her with the March 2010 VA examiner's curriculum vitae and other information regarding his qualifications pursuant to Francway. The parties stated that although in the January 2022 decision, the Board acknowledged that there was argument from Appellant's veterans service organization (VSO) representative in September 2020 in reference to the VA examiner's curriculum vitae or resume and found that the VA examiner was qualified to conduct the VA examination, the Board did not address the Appellant's specific argument in September 2021 that the request for qualifications triggered the duty to assist to provide her with the VA examiners' qualifications before issuing the Board's decision. When a request is made for information as to the competency of an examiner who conducts an evaluation, the Veteran has the right, absent unusual circumstances, to the curriculum vitae and other relevant information about the qualifications of a medical examiner. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). In light of the foregoing, a remand is warranted in order to provide the Appellant with the March 2010 VA examiner's qualifications. Finally, in the January 2023 JMR, the parties agreed that the Board erred in its January 2022 decision when it failed to address arguments raised by the Appellant in September 2021 that the Board, in its previous decision, failed to address whether a higher rating or separate ratings were warranted for the Veteran's lumbar spine condition based on sleep disturbances. In that regard, in September 2021, the Appellant's representative noted that the record showed that the Veteran suffered from sleep impairment due to his back condition as well as anxiety due to his back condition. See April 2021 VA Form 9. The representative stated that "[g]iven the evidence of symptoms not compensated by the Veteran's rating, the Board was obligated to address whether a higher rating could be assigned or whether separate ratings could be assigned for these symptoms separate from his limitation of motion." In the April 2012 VA Form 9, the Veteran stated that he could not sleep because his back pain was so bad it caused him to have "sleeping anxiety" and that the pain and sleep deprivation caused "personal and emotional problems that have everlasting effects that cannot be recovered." On remand, the AOJ should consider whether the Veteran's sleep impairment may be compensated as part of his disability picture for lumbar disability or whether he has raised a separate claim for secondary service connection, which should be adjudicated. See Bailey v. Wilkie, 33 Vet. App. 188, 201-203 (2021). The matters are REMANDED for the following action: 1. Request the curriculum vitae and other relevant information about the qualifications of the medical examiner (physician's assistant) who performed the March 2010 VA examination be incorporated into the record. If the requested information is unavailable, a written statement to that effect should be prepared for the record and the Veteran and his representative notified of the unavailability of the records. 2. Consider the Veteran's reports of sleep impairment from back pain (See September 2012 VA Form 9). Address this symptom by either adjudicating it as part of the Veteran's lumbar disability picture or as a separate claim for secondary service connection. Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Casula, Denise 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.