Citation Nr: 23027346 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 11-10 813 DATE: May 8, 2023 REMANDED Entitlement to an initial evaluation in excess of 10 percent for service-connected status-post lumbar surgery with laminectomy at L5 and S1 levels, and degenerative discs and degenerative joint disease of the lumbar spine (a lumbar spine disability) prior to April 26, 2022, and in excess of 20 percent from that date, is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity (RLE) prior to April 26, 2022, and in excess of 40 percent from that date, is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity (LLE) prior to April 26, 2022, and in excess of 40 percent from that date, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 26, 2022, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1985 to February 2007. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision. An interim (January 2009) rating decision continued the 10 percent rating assigned for the lumbar spine disability. The Veteran testified at a January 2013 Board hearing. In June 2014, the Board remanded the claims for further development. In December 2016 and August 2017, the Board remanded the claim for further development. The Board notes that the Veteran did not perfect an appeal for RLE radiculopathy after issuance of the April 2016 Statement of the Case (SOC), therefore, RLE radiculopathy was no longer on appeal at that time. An interim (December 2017) rating decision granted service connection for LLE radiculopathy at 10 percent, effective October 13, 2017. In February 2018, the Board remanded the claim for further development. Thereafter, in a September 2020 Board decision, the Board denied entitlement to an initial rating in excess of 10 percent for a lumbar spine disability. The Veteran appealed the Board's September 2020 decision to the United States Court of Appeals for Veterans Claims (CAVC). In September 2021, the CAVC granted a Joint Motion for Remand (JMR) filed by the parties to the appeal, thereby vacating the Board's decision and remanding the matters for readjudication. In April 2022, the claims were remanded for additional development in accordance with the September 2021 JMR. An April 2022 rating decision increased the rating for a lumbar spine disability to 20 percent, increased the rating assigned for RLE radiculopathy to 40 percent, and increased the rating assigned for LLE radiculopathy to 40 percent, each effective April 26, 2022, and a September 2022 rating decision granted entitlement to a TDIU rating, effective April 26, 2022. In the April 2022 Remand, a determination was made that the claims of entitlement to increased ratings f or RLE radiculopathy and LLE radiculopathy were properly before the Board as part-and-parcel of the claim for an initial rating in excess of 10 percent for lumbar spine disability. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (providing that where the issue of an increased rating for radiculopathy is determined to be within the scope of the claim for an increased rating for a spinal disability on appeal, no separate notice of disagreement is required). 1. Entitlement to an initial evaluation in excess of 10 percent for a lumbar spine disability prior to April 26, 2022, and in excess of 20 percent from that date, is remanded. 2. Entitlement to a rating in excess of 20 percent for RLE radiculopathy prior to April 26, 2022, and in excess of 40 percent from that date, is remanded. 3. Entitlement to a rating in excess of 10 percent for LLE radiculopathy prior to April 26, 2022, and in excess of 40 percent from that date, is remanded. The Board regrets further delay, but unfortunately, it finds that the April 2022 remand instructions were not adequately fulfilled. See Stegall v. West, 11 Vet. App. 268 (1998). In its April 2022 Remand, the Board noted that although the Veteran had undergone multiple VA examinations during the lengthy appeal period, including in July 2008, August 2011, February 2016, October 2017, and September 2019, and had submitted private examinations dating to August 2014, and December 2014, none provided complete medical findings, therefore, the Board could not make a fully informed decision on the issue of increased rating for the Veteran's lumbar spine disability because no medical opinion had been obtained to determine if the Veteran was functionally ankylosed. Ankylosis is defined as immobility of a joint in essence, complete limitation of motion. VA does not consider ankylosis to be a diagnosis rather, it considers ankylosis to be an objective finding like limitation of motion, muscle spasm, guarding, and tenderness. Thus, application of 38 C.F.R. §§ 4.40 and 4.45 permit consideration under the Spine Formula of a rating based on ankylosis if a Veteran's functional loss is the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Board found that there was medical and lay evidence indicative of significant limitation of motion and pain during the appeal period and that the September 2019 VA examination showed, including per the Veteran's reports, that she was unable to sit, stand, and walk for extended periods of time. She also related in a December 2021 statement and at her hearing in February 2013, that bending forward and back caused pain and limited her ability to bend. The Board found that the record did not reveal a medical opinion as to whether the functional loss experienced by the Veteran was the functional equivalent of ankylosis during the relevant period. In an October 2022 VA back opinion, the provider notes that she was directed to opine whether it was at least as likely as not that the Veteran "has, or has had, experienced functional loss of the lumbar spine that is functionally equivalent to ankylosis," and that she was to consider and expressly address evidence indicating that the Veteran wore a back brace on a regular basis. The provider opined that there was no evidence of ankylosis on physical examination, there was no report from the Veteran that she wore a back brace, and there was no documentation of a back brace in the assistive device section during the current examination. The Board also noted in its April 2022 Remand, that remand was warranted because no medical opinion had been obtained to determine the severity of the Veteran's lumbar spine disability, as well as her bilateral lower extremity radiculopathy, without accounting for ameliorative effects of her medication. Additionally, the October 2022 VA back opinion provider notes that she was directed to identify any symptoms and functional impairments due to lumbar spine disability, alone, without considering the ameliorative effects of her medications, and that if she determined that it was not possible to address the severity and frequency of the lumbar spine disability symptoms without consideration of the ameliorative effects of medication, she must state whether the need to speculate was due to a deficiency in the state of general medical knowledge, a deficiency in the record, or that she did not have the requisite knowledge or training to make such a determination. The provider opined that she was unable to determine the Veteran's lumbar symptoms with or without medications due to such determination being "outside the scope of practice of the C & P exam," and that there was a deficiency in known facts. The Board notes that the October 2022 VA opinion is inadequate for multiple reasons. Although the provider opined that there was no evidence of ankylosis on physical examination, there was no report from the Veteran that she wore a back brace, and there was no documentation of a back brace in the assistive device section during the current examination, the opinion appears to be limited to the Veteran's reports on the April 2022 VA back examination. The Board recognizes that there is a dearth of information regarding the Veteran's report of back brace usage in the VA treatment records during the period on appeal. However, other instances of limited motion were documented during such period, and although the remand directives were somewhat contradictory, it is clear that the provider needed to note any instances of functional ankylosis during the period on appeal and not just on the current examination. Further, regarding the ameliorative effects of the Veteran's medications on her lumbar spine disability and her RLE and LLE radiculopathy, the provider's response was simply that such a determination was "outside the scope of practice of the C & P exam," and that there was a deficiency in known facts. The Board finds that such portion of the opinion is inadequate because it is unclear whether the provider is indicating that she did not have the requisite knowledge to properly give an opinion or there was a deficiency in the state of general medical knowledge, and although the provider indicated there was a deficiency in known facts, she did not identify what, if any, facts or evidence might be needed so that an adequate opinion could be provided. Therefore, remand is necessary to obtain an adequate medical advisory opinion regarding the severity of the Veteran's lumbar spine disability and RLE radiculopathy and LLE radiculopathy during the period on appeal. The Board notes that, regarding the Veteran's RLE and LLE radiculopathy, the provider in an April 2022 VA opinion simply opined that the claimed numbness, right foot and radiculopathy left lower extremity were at least as likely as proximately due to or the result of the Veteran's service-connected lumbar spine disability, which is essentially just a service connection opinion and does not address the severity of the RLE or LLE radiculopathy. 4. Entitlement to a TDIU rating prior to April 26, 2022, is remanded. As noted above, a September 2022 rating decision granted entitlement to a TDIU rating, effective April 26, 2022. Therefore, the Veteran's claim of entitlement to a TDIU rating prior to April 26, 2022, is inextricably intertwined with the lumbar spine claim being remanded because an increased rating for a lumbar spine disability during the period for consideration (from March 2007 to April 2022), would impact on the analysis of the TDIU claim. Further, an increased rating for a RLE or LLE radiculopathy prior to April 26, 2022, would also impact on the analysis of the TDIU claim. Thus, remand is required. The matters are REMANDED for the following: 1. Forward the Veteran's claims file to an appropriate clinician for an addendum opinion regarding the severity of the Veteran's lumbar spine disability and RLE radiculopathy and LLE radiculopathy. If an examination is deemed necessary, one should be provided. On review of the record, the clinician should provide the following opinions: (a) Provide an opinion as to the severity of the functional impairments caused by her lumbar spine disability and her RLE radiculopathy and LLE radiculopathy, to include range of motion estimates (for the lumbar spine disability), without considering the ameliorative effects of her prescribed pain medication during the period on appeal (i.e., since March 2007). The Veteran reported taking Tramadol daily during the period on appeal, (specifically on August 2011, October 2017, September 2019, April 2022 VA examinations) for lumbar spine and/or radiculopathy pain. The Veteran has also variously reported during the appeal period the use of Celebrex and Methocarbamol. In so doing, the provider is to explain, to the extent possible, the ameliorative effects of the pain medication taken by the Veteran. The Board notes that consultation with another provider such as an internist and/or neurologist may be needed to obtain such opinions. (b) Opine whether it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's lumbar spine disability symptoms have resulted in the functional equivalent of ankylosis at any time during the rating period on appeal, from March 2007 to the present, to include the Veteran's reports of limited functional ability in her lay statements, testimony, and on examination. (c) If any opinion cannot be given without resorting to speculation, the provider should 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), the record (additional facts are required), or the provider does not have the knowledge or training and provide an explanation regarding any such deficiency. Simply noting one of the above reasons for speculation without providing supporting explanation is not sufficient. 2. When the development sought above is completed, arrange for all further development necessary (with the Veteran's and her representative's participation/co-operation), and readjudicate the claim of entitlement to a TDIU rating prior to April 26, 2022. K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bayles, James J. 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.