Citation Nr: 25005404 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 15-05 922 DATE: April 22, 2025 REMANDED Entitlement to a rating in excess of 40 percent for the Veteran's service-connected L2-3 laminectomy and L2 hemilaminectomy with L5-S1 decompression and failed back syndrome, status post implantation of dorsal column stimulator (back conditions) is remanded. Entitlement to a total disability based on individual unemployability (TDIU), based on the Veteran's service-connected back conditions alone, is remanded. REASONS FOR REMAND Unfortunately, the Veteran died in December 2020. See Death Certificate. The Board sincerely sympathizes for his family's loss. Appellant, his surviving spouse, was substituted on behalf of the Veteran in September 2021. Given such, prior to discussing the appeal at hand, the Board of Veterans' Appeals (Board) would be remiss if it did not recognize the Veteran's honorable service. The Veteran, who served on active duty in the United States Marine Corps from July 1988 to March 1995, was a recipient of, inter alia, the Navy Commendation Medal, the Navy Achievement Medal, the Good Conduct Medal with four stars, and the National Defense Service Medal, as well as five letters of appreciation. Clearly, the Veteran was a credit to the Marines and his family, and his service to our country is greatly appreciated. This matter comes before the Board on appeal from a June 2007 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO). By way of background, in a December 2018 decision, the Board, inter alia, in addressing a staged rating on the Veteran's low back disorder, granted a 40 percent rating for the Veteran's back condition for the entire period on appeal. The RO in a January 12, 2019, VA rating decision, specifically stated that its decision was accomplished to implement the Board's December 2018 decision. During this period. The Veteran appealed, inter alia, the Board's denial of a rating in excess of 40 percent to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court found that entitlement to special monthly compensation (SMC) at the housebound rate had been raised by the record and that, as such, the Board had erred in not addressing whether, inter alia, a TDIU due to the Veteran's back conditions alone was warranted. The Court concluded by setting aside, inter alia, the portion of the Board's decision that denied a higher rating for the Veteran's back conditions throughout the period on appeal and remanded for readjudication. In a December 2021 decision, the Board denied a rating in excess of 40 percent for the Veteran's back conditions; the Board also, inter alia, remanded the issue of entitlement to SMC at the housebound rate. The appellant appealed such decision to the Court. In a November 2023 Memorandum Decision, the Court, inter alia, found that the Board had erred in not addressing whether the issue of entitlement to a higher rating for the Veteran's back condition had been opted into the Veterans Appeals Improvement Modernization Act of 2017 (AMA) review system and found that a remand of the issue was necessary to allow the Board to address such. The Court's single judge decision was ultimately adopted in a February 2024 Panel Decision. As an initial matter, the Board notes that, when evidence of unemployability is submitted during the course of an appeal of an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Here, as noted above, the June 2020 Memorandum Decision found that the issue of entitlement to a TDIU based on the Veteran's service-connected back condition alone had been raised by the record. As such, the Board finds that such has been raised by the record and, therefore, is properly included in the list of issues before the Board on appeal. Jurisdiction As indicated above, the appellant, through her attorney, has argued that the issue of entitlement to a higher rating for the Veteran's service-connected back condition was opted into AMA and, therefore, is no longer in the Legacy system. As an aside, it is important to note that there are two separate issues pertaining to the Veteran's lumbar disability, which may be causing some confusion. The first, and the one that pertains to this Legacy claim - docket number 15-05 922 - is entitlement to an increased rating higher than 40 percent for the entire period on appeal, which has been identified as beginning September 27, 2006, and the other appeal, which pertains to whether the Veteran is entitled to an earlier effective date for his increased rating. Nonetheless, as discussed above, in a December 2018 decision, the Board granted a 40 percent rating for the Veteran's back condition and denied a rating in excess thereof. In April 2019, the Veteran appealed such denial to the Court. In November 2019, while the appeal was pending with the Court, the Agency of Original Jurisdiction (AOJ) issued a Statement of the Case (SOC) addressing 18 issues, including a rating in excess of 10 percent for the Veteran's back condition. In a January 2020 VA Form 10182, the Veteran, through his attorney, attempted to opt the issue addressed in the SOC into the AMA review system. However, as also discussed above, the issue of entitlement to a higher rating for the Veteran's back condition was addressed in a December 2018 Board decision, had been appealed to the Court, and was then-pending at the time of the November 2019 SOC, which was issued after the May 2019 AOJs decision. In other words, such issue was not before the AOJ at such time and, therefore, was improperly included in the November 2019 SOC. See, generally, Grantham v. Brown, 114 F.3d 1156 (1997) (concurring). It is important to note that the May 2019 AOJ's only action at the time was to implement the Board's grant of the increased rating. It stated: "The Board of Veterans['] Appeals made their decision on your appeal on December 6, 2018. We have implemented their decision based on the evidence listed below." An RO decision that is a purely ministerial implementation of the Board's judgment is not a decision and cannot be appealed through the filing of an NOD. See Encarnacion v. McDonough, 36 Vet. App. 194, 201 (2023), overruled on other grounds by Kernz v. McDonough, 36 Vet. App. 372 (2023). Essentially, once an appellate body takes jurisdiction over a claim, the lower tribunal may not consider the same issues. Cerullo v. Derwinski, 1 Vet. App. 195, 197 (1991). The AOJ's May 2019 decision, therefore, could not be appealed through filing an NOD or in this case opting in. See Encarnacion, 36 Vet. App. at 201. As the issue of entitlement to a higher rating for the Veteran's back conditions was improperly included in the November 2019 SOC, such issue could not be properly opted into AMA from the November 2019 SOC. Additionally, as has been noted, the issue of entitlement to a higher rating for the Veteran's back conditions was pending before the Court at the time of both the November 2019 SOC and the January 2020 VA Form 10182. Indeed, approximately two months after the January 2020 VA Form 10182, the Veteran's attorney submitted a reply brief to the Court in support of their appeal; notably, such brief did not contend that the issue had been opted into AMA. See March 2020 Appellant Reply Brief. Given the above, the Board finds that the January 2020 VA Form 10182 did not constitute a valid AMA opt-in with respect to the issue of entitlement to a higher rating for the Veteran's service-connected back conditions. As such, the issue remains in the Legacy system and is properly before the Board on appeal within such system. However, as the Board finds that a remand of these matters is warranted, if the appellant wishes for these matters to be subject to the AMA review system, if the AOJ issues a Supplemental Statement of the Case (SSOC) with respect to these matter, he is encouraged to submit a VA Form 20-0095 (Supplemental Claim), VA Form 20-0996 (Higher-Level Review Request), or VA Form 10182 (Board Review Request), opting the matters into the AMA system from such SSOC. 1. Entitlement to a rating in excess of 40 percent for the Veteran's service-connected back conditions is remanded. 2. Entitlement to a TDIU, based on the Veteran's service-connected back conditions alone, is remanded. The Board regrets the delay associated with this remand, particularly given the lengthy procedural history associated herewith. However, based on a review of the evidence of record, the Board finds that, in light of Correia v. McDonald, Sharp v. Shulkin, and Ingram v. Collins, a remand is necessary to allow the AOJ to obtain a RETROSPECTIVE OPINION regarding the nature and severity of the Veteran's service-connected back conditions throughout the period on appeal. In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The record reveals that the Veteran underwent VA examinations regarding his back conditions in June 2008, June 2009, July 2014, November 2015, and January 2018. However, such examinations did not specify whether the testing included both active and passive motion, or whether the results provided were weight-bearing or non-weight-bearing. See June 2008 VA Spine Examination; June 2009 VA Spine Examination; July 2014 VA Back Conditions Disability Benefits Questionnaire (DBQ); November 2015 VA Back Conditions DBQ; January 2018 VA Back Conditions DBQ. Additionally, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, flare-ups and repetitive use over time affect functional loss. Sharp, 29 Vet. App. at 26. Further, VA examiners are expected to offer opinions on functional loss that would occur during flare-ups and repetitive use over time based on estimates derived from relevant sources, including the Veteran's lay statements. Id. at 34. In other words, stating that the examination was not conducted during a flare-up or following repetitive use over time as the sole rationale for not addressing the functional impacts of such is not sufficient. Here, the June 2008 and June 2009 examiners did not address the functional impacts of repeated use over time or flare-ups; no rationale was provided. See June 2008 VA Spine Examination; June 2009 VA Spine Examination. Additionally, the July 2014 and November 2015 examiners declined to address such, stating that to do so without measurement would be speculative. See July 2014 VA Back Conditions DBQ; November 2015 VA Back Conditions DBQ. Similarly, the January 2018 examiner declined to address such, saying that it required speculation. See January 2018 VA Back Conditions DBQ. Further, in Ingram, the Court held that, pursuant to VA regulations and Janes v. Shinseki, 26 Vet. App. 56 (2012), the ameliorative effects of medication must be discounted in evaluating musculoskeletal disabilities. Ingram v. Collins, No. 23-1798, 2025 U.S. App. Vet. Claims LEXIS 327 (Mar. 12, 2025). In other words, the ameliorative effects of medication and the level of functional impairment that would be present absent such medication should be discussed. Here, the record reveals that the Veteran's back conditions were treated with a myriad of medications throughout the appeal period, including oxycodone, oxycontin, and tapentadol. See Manchester VA Medical Center (VAMC) records, received March 2020, March 2024, and October 2024 in CAPRI; White River VAMC records, received October 2024 in CAPRI; Boston VAMC records, received February 2020 and February 2020 in CAPRI; Northampton VAMC records, received February 2020, February 2020, and February 2020 in CAPRI. Such records also reveal that a dorsal column stimulator was implanted in June 2017. See id. However, none of the VA examinations of record discussed the ameliorative effects of medication nor did such examinations opine as to the level of functional impairment the Veteran would experience absent such medication. See June 2008 VA Spine Examination; June 2009 VA Spine Examination; July 2014 VA Back Conditions DBQ; November 2015 VA Back Conditions DBQ; January 2018 VA Back Conditions DBQ. As the June 2008, June 2009, July 2014, November 2015, and January 2018 VA examination reports did not satisfy the requirements of 38 C.F.R. § 4.59, Correia, Sharp, or Ingram, the Board finds that a remand is necessary to obtain a retrospective opinion regarding the severity of the Veteran's back conditions throughout the period on appeal. Lastly, the Board finds the issue of entitlement to a TDIU based on the Veteran's back conditions alone to be inextricably intertwined with the issue of entitlement to a rating in excess of 40 percent for the Veteran's back conditions. Therefore, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: 1. Obtain a RETROSPECTIVE OPINION from an appropriate clinician regarding the nature and severity of the Veteran's service-connected back condition from September 2006 through December 2020. The entire claims file must be provided to, and reviewed by, the examiner. 2. The examiner is asked to: (a.) Utilizing the Veteran's medical records, prior examinations, and lay histories, opine as to the severity of the Veteran's service-connected back conditions from September 2006 through December 2020. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of ROM, if possible. THE AMELIORATIVE EFFECTS OF ANY MEDICATION SHOULD BE DISCUSSED AND DISCOUNTED IN RENDERING SUCH OPINION. (b.) In rendering the requested opinions, the examiner is asked to address whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that, absent the ameliorative effects of medication, the functional impairment associated with the Veteran's back conditions would have manifested with the functional equivalence of unfavorable ankylosis of the thoracolumbar spine or unfavorable ankylosis of the entire spine. " Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer a requested opinion, a thorough explanation as to why an opinion cannot be rendered should be provided. " The examiner is reminded that the Veteran was competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. (a.) If any development action is incomplete, the appropriate corrective action must be implemented. (b.) If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Martin III, 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.