Citation Nr: 25005303 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 12-30 286 DATE: April 18, 2025 REMANDED Entitlement to a disability rating greater than 10 percent for lumbar degenerative joint and disc disease before July 17, 2014, is remanded. Entitlement to a disability rating greater than 40 percent for lumbar degenerative joint and disc disease beginning July 17, 2014, is remanded. Entitlement to a disability rating greater than 10 percent for left lower extremity (LLE) radiculopathy before March 6, 2013, is remanded. Entitlement to a disability rating greater than 20 percent for LLE radiculopathy beginning March 6, 2013, is remanded. Entitlement to a disability rating greater than 10 percent for right lower extremity (RLE) radiculopathy before March 6, 2013, is remanded. Entitlement to a disability rating greater than 20 percent for RLE radiculopathy beginning March 6, 2013, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) before March 6, 2013, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1975 to December 1979 and from October 1980 to July 1990. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal is in VA's legacy appeals system. In January 2015, April 2019, January 2022, and December 2022, the Board remanded the claims on appeal for further development and adjudication. In August 2023, the Board denied the Veteran's claims for increased ratings for his service-connected bilateral lower extremity radiculopathy and lumbar degenerative joint and disc disease. In the same decision, the Board remanded his claim for a TDIU prior to March 6, 2013, for further development including obtaining retrospective medical opinions. The claim for a TDIU has now returned to the Board. The Veteran appealed the August 2023 denials to the Court of Appeals for Veteran's Claims (Court). In March 2024, the parties agreed to a Joint Motion for Partial Remand (JMPR). The JMPR formally requested that the Court vacate the Board's August 2023 denials and remand the issues to the Board for corrective measures. In July 2024, the Board remanded each of the Veteran's claims for increased ratings for his service-connected bilateral lower extremity radiculopathy and lumbar degenerative joint and disc disease for further development including obtaining outstanding relevant records and providing both updated medical examinations and retrospective medical opinions. These claims have now returned to the Board. 1. Increased Rating for Lumbar Degenerative Joint and Disc Disease Before July 17, 2014 2. Increased Rating for Lumbar Degenerative Joint and Disc Disease Beginning July 17, 2014 3. Increased Rating for LLE Radiculopathy before March 6, 2013 4. Increased Rating for LLE Radiculopathy beginning March 6, 2013 5. Increased Rating for RLE Radiculopathy before March 6, 2013 6. Increased Rating for RLE Radiculopathy beginning March 6, 2013 The above captioned claims for increased ratings for lumbar degenerative joint and disc disease, LLE radioculopathy, and RLE radiculopathy, must be remanded to ensure substantial compliance with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board's July 2024 remand ordered the RO to provide "VA examinations to determine the current nature and severity of his service-connected lumbar degenerative joint and disc disease and associated bilateral lower extremity radiculopathy." In January 2025, The RO provided a VA examination for the Veteran's back using the standard VA Disability Benefits Questionnaire (DBQ) for Back (Thoracolumbar Spine) Conditions. Although this DBQ contains some questions regarding the Veteran's related bilateral lower extremity radiculopathy, it does not go into the same level of detail as the standard DBQ for Peripheral Nerve Conditions (Not Including Diabetic Sensory-Motor Peripheral Neuropathy), such as the one used for the Veteran's January 2023 examination. The Board finds that the July 2024 remand order required a separate examination for the Veteran's bilateral lower extremity radiculopathy and that the information contained in the January 2025 DBQ for Back Conditions is not sufficient to substantially comply with that order. The Board's July 2024 remand order also required the examiner to respond to several detailed questions, broken down into a list from 2A to 2F. The January 2025 VA examiner provided eight separate opinions attempting to address these questions. Unfortunately, the rationales provided in these opinions are inadequate to support decisions on the Veteran's claims. Remand order 2D sought retrospective opinions to supplement information in specific previous VA examination reports regarding the severity of the Veteran's lumbar spine disabilities over the period on appeal. Remand order 2D1 instructed the examiner as follows: Provide an addendum retrospective opinion for the Veteran's service-connected lumbar spine disabilities to supplement the May 2010 VA Examination Report that: 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. The examiner noted the Veteran's current range of motion, with forward flexion limited to 85 degrees and combined range of motion to 210 degrees, with the same results on active and passive testing and in both weightbearing and non-weight bearing positions. The examiner then opined that because there was no evidence of loss of range of motion during the current exam, the Veteran's prior reports of loss of range of motion "are not considered chronic and valid." This rationale is inadequate for two reasons. First, it is unclear why the examiner stated that there was no evidence of loss of range of motion on the current examination when the recorded results for each motion tested was five degrees less than the standard healthy range of motion. See 38 C.F.R. § 4.71a, Plate V. Second, there is no requirement that the claimed level of severity of the Veteran's symptoms remain "chronic." Remand order 2D2 included the same instructions but for an examination conducted in July 2014. However, instead of offering a retrospective opinion, the examiner stated that while the Veteran's lay statements were acknowledged, there was no evidence of amount of range of motion lost due to pain in weight bearing or non-weightbearing positions. It is not clear whether this referred to the Veteran's current symptoms or his symptoms in 2014. If it refers to his current symptoms, then this raises the same concern noted above, as the test results showed reduced range of motion in each movement measured. If it refers to symptoms in July 2014, then it is not clear why the examiner does not consider the Veteran's lay statements as some evidence. In either case, the rationale is inadequate to support a decision on the Veteran's claims. Remand order 2D3 instructed the examiner as follows: Provide an addendum retrospective opinion for the Veteran's service-connected lumbar spine disabilities to supplement the December 2019 VA Examination Report that: (a) 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. (b) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. Remand order 2D4 contained the same instructions but for an examination conducted in May 2022. The opinions provided in response to remand orders 2D3 and 2D4 did not discuss flare-ups and again stated that while the Veteran's lay statements were acknowledged, there was no evidence of amount of range of motion lost due to pain in weight bearing or non-weightbearing positions. This is inadequate both for the reasons outlined in the previous paragraph and because they failed to discuss flare-ups as required by the orders. Remand order 2E instructed the examiner to opine as to whether the Veteran's loss of range of motion and function of the back during any period of time from July 30, 2008, to July 17, 2014, more nearly approximated (i)favorable ankylosis or (ii)unfavorable ankylosis? The response to this question stated that "[t]here is no evidence of loss of range of motion noted during the current exam." This is both inaccurate, as discussed above, and irrelevant, as this question was about the severity of the Veteran's symptoms over ten years priod. The response concluded that "[t]here is NO evidence of ankylosis." This is not responsive to the question of whether or not the severity of the Veteran's symptoms more nearly approximated either favorable or unfavorable ankylosis. Finally, remand order 2F asked wether the Veteran's "back disability alone required the Veteran to be permanently bedridden an any time from July 2008 to present." The examiner's response acknowledged statements of the Veteran and his spouse that he experienced periods of being bedridden due to his back. However, the examiner then opined that "there is no evidence of veteran being bedridden for his back condition to include degenerative joint, disc disease, lumbar spondylosis, lumbosacral spine, postoperative fusion." Because the Veteran and his spouse are competent to report the Veteran being bedridden, and the examiner did not explain why their statements were not credible, this reponse is inadequate to support a decision on the Veteran's claims. Furthermore, on a VA form 21-4142 Authorization for Release of Information submitted in August 2024, the Veteran identified relevant outstanding private treatment records from three providers. The record contains documentation of two unsuccesful attempts to contact the first listed provider. In September 2024, the Veteran submitted a letter with new contact information for this provider including a new fax number, new phone number, and the name of a particular staffperson to contact regarding any request for records. The record does not document any attempt by the RO to contact the provider using the updated contact information. The record shows no attemps whatsoever to contact either the second or third listed providers on the August 2024 VA form 21-4142. A remand is required to allow VA to request these records. Unfortunately, both because of the lack of substantial compliance with the Board's previous remand directives and because there appear to be outstanding relevant medical records, a remand of each of these claims is necessary. 7. TDIU Before March 6, 2013 The Veteran is seeking a TDIU before March 6, 2013. The Board notes that a previous Board decision of December 2022 ordered the RO to obtain various medical opinions related to the Veteran's bilateral knee disability. Then in August 2023, in the portion of the Board decision that remanded the claim for a TDIU before March 6, 2013, the Board again requested these opinions. A review of the record shows that these orders were made in error. The body of the December 2022 Board remand discusses the Veterans back but does not mention the Veteran's knees, and the remand orders themselves ask for addendums to VA examinations of the Veteran's back, not his knees. Because these orders were issued in error and are not relevant to the Veteran's claim, the Board will not continue to seek these opinions. However, because a decision on the remanded issues of increased ratings for lumbar degenerative joint and disc disease, LLE radioculopathy, and RLE radiculopathy could significantly impact a decision on the issue of entitlement to a TDIU before March 6, 2013, the issues are inextricably intertwined. A remand of the claim for a TDIU before March 6, 2013 is required. The matters are REMANDED for the following action: 1. Make two requests for the authorized records from each of the providers identified on the Veteran's August 2024 VA form 21-4142, unless it is clear after the first request that a second request would be futile. For the first identified provider, Dr. S.S., attempt to use the updated contact information provided by the Veteran in his letter dated September 12, 2024. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. 2. After the above development is complete, the Veteran should be afforded VA examinations to determine the current nature and severity of his service-connected lumbar degenerative joint and disc disease and associated bilateral lower extremity radiculopathy. All indicated testing should be accomplished and all symptomatology associated with such disabilities should be identified. (a.) In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's spine and present the results of range of motion tests in a written report which complies with38C.F.R. §4.59by recording separate sets of the range of motion test results for both active and passive motion, and in weightbearing and non-weightbearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. (b.) In order to comply with Sharp v. Shulkin,29 Vet. App. 26, 33(2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares and repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares and repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares and repetitive use. If any of these findings are not possible, please provide an explanation. (c.) The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran's lumbar spine disability and bilateral lower extremity radiculopathy on his daily activities and employability. (d.) The examiner is also asked to provide retrospective findings. Following a review of the record, the clinician should provide retrospective findings for the below identified past examinations. 1. Provide an addendum retrospective opinion for the Veteran's service-connected lumbar spine disabilities to supplement the May 2010VA Examination Report that: 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. 2. Provide an addendum retrospective opinion for the Veteran's service-connected lumbar spine disabilities to supplement the July 2014VA Examination Report that: 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. 3. Provide an addendum retrospective opinion for the Veteran's service-connected lumbar spine disabilities to supplement the December 2019VA Examination Report that: a. 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. b. Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. 4. Provide an addendum retrospective opinion for the Veteran's service-connected lumbar disabilities to supplement the May 2022 VA Examination Report that: a. 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. b. Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (e.) Does the loss of range of motion and function of the back during any period of time from July 30, 2008, to July 17, 2014, more nearly approximate (i)favorable ankylosis or (ii) unfavorable ankylosis? Explain. If yes, identify any period(s) of time when either (i)or (ii)is shown, if at all. (f.) Has the Veteran's back disability alone required the Veteran to be permanently bedridden an any time from July 2008 to present. Explain. Note that the Veteran and his spouse assert that during the periods when the Veteran is not assigned a temporary total rating, the Veteran's symptoms have been essentially the same and include excruciating pain, being bedridden, inability to work, and that he had experienced this pain for nearly 20 years. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. In providing the requested opinions, consider the Veteran's description of his symptoms as well as the lay observations of his spouse. If there is any medical reason to accept or reject these reports of lay-observable symptoms, state this reason. Stated another way, do the lay reports about the Veteran's symptoms align with how the currently diagnosed disability is known to manifest or are the lay reports generally inconsistent with medical knowledge or implausible? L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.