Citation Nr: 23045751 Decision Date: 08/17/23 Archive Date: 08/17/23 DOCKET NO. 15-22 045 DATE: August 17, 2023 REMANDED Entitlement to a rating in excess of 20 percent for a lumbar spine disability for the period on appeal is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy for the period on appeal is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy for the period on appeal is remanded. REASONS FOR REMAND The Veteran had active service in the United States Coast Guard from August 2005 to April 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In August 2019, the Veteran testified before a Veterans Law Judge (VLJ) at the Board. A transcript of the hearing has been associated with the claims file. The VLJ who conducted the Veteran's August 2019 hearing is no longer with the Board. In May 2022, the Veteran was offered the opportunity to testify at another hearing and informed that if he did not respond within 30 days the Board would assume that he did not want another hearing and proceed accordingly. The Veteran did not respond to the letter, so the Board will proceed with adjudication. In May 2021, the Board denied the Veteran's claim for a rating in excess of 10 percent for his lumbar spine disability from December 20, 2011 to January 2, 2020, and in excess of 20 percent from January 2, 2020. The Board also declined to adjudicate the Veteran's claim for separate ratings in excess of 10 percent for right and left lower extremity radiculopathy. In May 2022, the United States Court of Appeals for Veterans Claims (Court) granted a May 2022 Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of VA (parties), vacated the May 2021 Board decision and remanded the matter to the Board for compliance with the JMR. In September 2022, the Board issued a decision granting a 20 percent rating for lumbar spine disability from December 20, 2011 to January 2, 2020, a 20 percent rating for right lower extremity radiculopathy for the entire period on appeal (from December 20, 2011 to the present), and a 20 percent rating for left lower extremity radiculopathy for the entire period on appeal. The Board remanded the following issues: (i) a rating in excess of 20 percent for a lumbar spine disability for the entire period on appeal; (ii) a rating in excess of 20 percent for right lower extremity radiculopathy for the entire period on appeal; and (iii) a rating in excess of 20 percent for left lower extremity radiculopathy for the entire period on appeal. In June 2023, the Veteran's representative, The American Legion, submitted an informal hearing presentation. The Board regrets the delay, but another remand is necessary to ensure substantial compliance with the directives of the September 2022 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability for the period on appeal is remanded. In its September 2022 remand, the Board directed the AOJ to provide the Veteran a new examination to assess the severity of his lumbar spine and radiculopathy disabilities, to include during flare-ups. The Board directed the examiner to estimate any additional functional impairment, expressed in terms of additional range of motion lost, based on the evidence of record and the Veteran's lay descriptions of repeated use or flare-ups. The Board indicated that if it was not feasible to determine the extent to which the Veteran experienced additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner should provide an explanation for why that was so. The Board also noted that the Veteran was competent to attest to factual matters related to observable symptomatology, including reduced range of motion, and directed the examiner to provide a fully reasoned explanation if there was a medical basis to support or doubt the history provided by the Veteran, particularly pertaining to the description of reduced range of motion during flare-ups. In January 2023, the Veteran was afforded a VA back (thoracolumbar spine) examination. The Veteran reported flare-ups of the thoracolumbar spine occurring and lasting 2-3 days a week. He indicated overuse as a precipitating factor, rest as an alleviating factor, and that his flare-ups were characterized by very intense sharp pain. He also reported his functional impairment during symptom flare-up as "impaired physical limitation with certain ROM such as prolong sitting, standing, squatting." January 2023 VA Back (thoracolumbar spine) Examination at 3. The examiner answered "none" to a prompt regarding treatment, medications, or surgery for the Veteran's back condition. Id. at 3. The examiner indicated that the Veteran was not examined immediately after repeated use over time or during a flare-up, but that procured evidence (statements from the Veteran) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limiting functional ability with repeated use over time or with flare-ups. Id. at 7. The examiner indicated additional factors contributing to disability included interference with sitting, interference with standing and less movement than normal. The examiner also indicated "impaired physical limitation with certain ROM such as prolong sitting, standing, squatting." Id. at 9. With regard to the Veteran's radiculopathy, the examiner indicated that the Veteran's conditions impacted his ability to perform occupational tasks such as standing, walking, lifting, sitting, etc. The examiner noted that the Veteran had functional impairment when running, squatting, walking, and standing for long periods of time. January Id. at 15. In April 2023, the AOJ requested an addendum opinion and asked the examiner to address estimated functional impairment. That same month, the examiner provided the following addendum opinion regarding functional impairment: "No functional loss due to flare-ups, one can have pain that is manageable, which poses no debilitation nor functional loss. Pain is subjective and claimant denied taking any medication for condition. One can argue that there is no indication that would indicate functional loss during exam... No objective evidence to support claimant's subjective claims besides his claims that he has pain. The Veteran did not report additional functional loss due to repeated use over time, and there is no medical reason to suggest that there may be additional functional loss due to repeated use over time." The Board finds both the January 2023 VA examination and report and the April 2023 VA addendum opinion inadequate. The examiner's January 2023 determination that procured evidence, including statements from the Veteran, did not suggest limited functional ability with repeated use over time or flare-ups is contradicted by the Veteran's own January 2023 statements. The Veteran reported flare-ups occurring 2-3 days a week and lasting for 2-3 days, and he indicated overuse as a precipitating factor. The Veteran also reported functional impairment with certain ranges of motion including prolonged sitting, standing, and squatting. The January 2023 VA examiner herself endorsed this functional limitation when she identified additional factors contributing to the Veteran's disability as interference with sitting, interference with standing, and less movement than normal, and stated "impaired physical limitation with certain ROM such as prolong sitting, standing, squatting." January 2023 VA back (thoracolumbar spine) examination and report at 9. The examiner similarly identified functional impairment associated with the Veteran's radiculopathy. Id. at 15 (noting functional impairment when running, squatting, walking, and standing for long periods of time). The examiner did not state that the Veteran's reports were clinically inconsistent with his condition. The examiner's statement in the April 2023 addendum opinion that "one can argue that there is no indication that would indicate functional loss during exam" is thus plainly inconsistent with the statements of the Veteran and the examiner's own observations. A medical examination must contain valid analysis of the pertinent facts of the case, to include the Veteran's lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding that an examiner impermissibly ignored the appellant's lay assertions). The Board finds that the January 2023 VA examination and report and the April 2023 VA addendum opinion fail to meet this standard. Likewise, the VA examiner did not satisfy the September 2022 remand directives. Instead of providing estimated ranges of motion for repeated use over time and flare-ups or an adequate explanation as to why such estimates could not be provided, the January 2023/April 2023 VA examiner mischaracterized the Veteran's report of functional impairment by reducing it to pain alone. The April 2023 VA addendum opinion does not provide a medical basis to support or doubt the history provided by the Veteran, particularly with regard to reduced range of motion during flare-ups, as requested the Board. Instead, it ignores the substance of the Veteran's report of functional impairment from overuse, certain prolonged activities, and related flare-ups, and dismisses these descriptive reports as subjective complaints about pain. Remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. See Stegall, supra. As there has not been substantial compliance with the September 2022 Board remand in this case, another remand is necessary. The Board emphasizes that part of the requested opinion in this matter must be retrospective and address the Veteran's range of motion and functional loss during the entire period on appeal. VA's duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period. Chotta v. Peake, 22 Vet. App. 80, 85 (2008); Vigil v. Peake, 22 Vet. App. 63 (2008). Further, the requested opinion must comply with the testing requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (holding remand appropriate where examination not conducted during a flare-up and examiner declined, without sufficient explanation, to provide adequate flare-up opinion or estimate) and Correia v. McDonald, 28 Vet. App. 158 (2016) (generally requiring ROM measurements on both active and passive motion and with weight-bearing and non-weight bearing). Finally, the Board observes that the May 2022 JMR also directed VA to consider the ameliorative effects of medication in connection with the Veteran's lumbar spine rating as the claims file includes evidence that, during the period on appeal, the Veteran has taken Motrin, naproxen, and ibuprofen for his back condition. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that when assigning a disability evaluation, the Board may not deny a higher disability rating based on relief provided by medication if the effects of medication are not explicitly contemplated by rating criteria). Where, as here, the relevant rating criteria do not account for the beneficial effects of medication on the veteran's symptoms, those effects must be identified and discounted from the disability picture. See McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). In other words, the veteran must be evaluated as though medication were not improving the indicated symptoms. In addressing the ameliorative effects of medication, the Board cannot rely on its own medical judgment. See Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991). Here, the available medical evidence is insufficient for the Board to identify the ameliorative effects of medication and appropriately evaluate the disability. Accordingly, on remand, the VA examiner should make the necessary findings regarding the ameliorative effects of the Veteran's use of medication. 2. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy for the period on appeal is remanded. 3. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy for the period on appeal is remanded. With respect to the Veteran's claims for ratings in excess of 20 percent for right and left lower extremity radiculopathy, the Board finds that they are inextricably intertwined with the increased rating lumbar spine claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). As the Board is remanding the Veteran's increased rating claim for his lumbar spine disability, the Veteran's increased rating claims for right and left lower extremity radiculopathy are remanded as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician other than the January 2023/April 2023 VA examiner to determine the severity of the Veteran's lumbar spine disability and his right and left lower extremity radiculopathy. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. (a) In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner 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 examiner (does not have the knowledge or training). (b) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner 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 examiner (does not have the knowledge or training). (c) The examiner must also provide an evaluation of the severity of the Veteran's disabilities that discounts the ameliorative effects of medication, to include ibuprofen, Motrin, and naproxen. If it is not possible to discount the ameliorative effects of medication without speculation, the examiner 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 examiner (does not have the knowledge or training). In this regard, the examiner should address the January 2023 VA examiner's report that the Veteran is not taking medication for his lumbar spine or lower extremity radiculopathy disabilities. This report is inconsistent with prior evidence of record, and the examiner should determine if it is in error or if it indicates a change in the Veteran's conditions and/or treatment. For the period from December 20, 2011, the examiner should provide RETROSPECTIVE opinions after reviewing the claims file and interviewing the Veteran regarding additional functional impairment from repeated use over time and/or flare-ups for the entire period on appeal from December 20, 2011. Ask the Veteran to give a lay description of the severity, frequency, and duration of his symptoms and functional loss during the period on appeal from repeated use over time and/or flare-ups. Provide a RETROSPECTIVE opinion for the period from December 20, 2011 prior to the examination as follows: (a) Estimate any additional functional impairment, expressed in terms of additional range of motion lost, based on the evidence of record and the Veteran's lay descriptions of repeated use over time and/or flare-ups. Address the Veteran's description of the severity, frequency, and duration of his symptoms and functional loss during the period on appeal from repeated use over time and/or flare-ups. If it is not possible to provide a specific measurement without speculation, the examiner 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 examiner (does not have the knowledge or training). (b) Address the severity of the Veteran's disabilities from December 20, 2011 that discounts the ameliorative effects of medication, to include ibuprofen, Motrin, and naproxen. In evaluating the severity of the Veteran's disabilities if he were to not take medication, the examiner should consider the following: (1) March 2022 VA telehealth note indicating ibuprofen on Veteran's active non-VA medication list. (2) August 2019 VA primary care note indicating Veteran takes ibuprofen as needed with benefit. (3) November 2017 VA allergy & immunology consult indicating Veteran's active medication list includes ibuprofen 800 mg one tablet by mouth every day as need for pain. (4) October 2017 VA primary care note indicating Veteran wants to see chiropractor again for his back and that he wants ibuprofen from VA. (5) April 2016 VA primary care note indicating Veteran takes ibuprofen for chronic back pain. (6) February 2016 VA examination and report indicating Veteran takes naproxen. (7) November 2015 VA follow-up primary care note indicating Veteran reported pain and weakness in legs when he stands long hours and indicating he had been prescribed Naprosyn for back pain/muscle strain and takes motrin as needed. (8) July 2015 VA follow-up primary care note indicating naproxen 500 mg one tablet by mouth twice a day as needed for pain, inflammation and swelling. (9) May 2015 VA primary care note indicating active medications include Naprosyn 500 mg twice daily. If it is not possible to discount the ameliorative effects of medication without speculation, the examiner 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 examiner (does not have the knowledge or training). The examiner is reminded that the Veteran is competent to attest to factual matters related to observable symptomatology, including reduced range of motion. If there is a medical basis to support or doubt the history provided by the Veteran, particularly pertaining to the description of reduced range of motion during flare-ups or repeated use over time, the examiner should provide a fully reasoned explanation. A complete rationale must be provided for all opinions expressed. 2. Readjudicate the claim. If the benefits sought remain denied, send the Veteran a Supplemental Statement of the Case (SSOC), and provide an appropriate time to respond before returning the appeal to the Board. MARISSA CAYLOR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. 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.