Citation Nr: 25005694 Decision Date: 04/25/25 Archive Date: 04/25/25 DOCKET NO. 15-35 039 DATE: April 25, 2025 REMANDED Entitlement to an initial rating in excess of 10 percent for the service-connected thoracolumbar spondylosis and degenerative disc disease of the lumbar spine prior to September 3, 2024, and a rating in excess of 20 percent on and thereafter is remanded. Entitlement to service connection for a skin condition, to include onychomycosis and xeroderma, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to December 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2017 rating decision, the RO granted service connection for thoracolumbar spondylosis and assigned a 10 percent rating, effective March 6, 2017. In February 2022 and July 2022, the Board remanded the issue of entitlement to a TDIU as intertwined with other issues. In December 2022, May 2023, and August 2024, the Board remanded these matters for further evidentiary development. In a December 2024 rating decision, the RO assigned an increased 20 percent rating for the Veteran's service-connected thoracolumbar spondylosis and degenerative disc disease of the lumbar spine, effective September 3, 2024. As higher ratings remain available, the matter remains on appeal. Finally, the Board notes that in the December 2024 rating decision, the RO additionally granted service connection for lumbar radiculopathy of both the left and right lower extremities and assigned both extremities a 20 percent rating, effective September 3, 2024. The record reflects that the Veteran's representative attempted to raise the issue of entitlement to an earlier effective date for the grant of service connection for the radiculopathy disabilities in connection with the instant appeal. See February 2025 Third Party Correspondence. However, to challenge the downstream element of an effective date for the grant of service connection for lumbar radiculopathy of the left and right lower extremities, the Veteran is required to file a separate Notice of Disagreement (NOD). See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The record shows that in the December 2024 notification letter sent with the rating decision, VA accurately notified the Veteran of the award of service connection for lumbar radiculopathy of the left and right lower extremities and separate rating, as well as his options if he disagreed with the decision. The effective date for the establishment of service connection for lumbar radiculopathy of the left and right lower extremities was not included in the January 2025 Supplemental Statement of the Case (SSOC), so the Veteran has no reason to believe that the effective date for lumbar radiculopathy of the left and right lower extremities is part of the instant appeal. As such, the Board will not address the lumbar radiculopathy of the left and right lower extremities issue, as it is not on appeal to the Board. To the extent that the Veteran disagrees with the effective date for the establishment of service connection for lumbar radiculopathy of the left and right lower extremities, he was advised of his options by letter dated December 2024, and the appeal period has not yet expired. 1. Entitlement to an initial rating in excess of 10 percent for the service-connected thoracolumbar spondylosis and degenerative disc disease of the lumbar spine prior to September 3, 2024, and a rating in excess of 20 percent on and thereafter is remanded. In the August 2024 remand, the Board determined that a new VA examination was necessary to determine the current severity of the Veteran's thoracolumbar spine condition. The Board determined that the prior VA examinations from April 2017 and December 2022 failed to comply with the Court's holdings in Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), and Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). Accordingly, the Board remanded this matter to obtain a new VA examination. In addition to evaluating the current severity of the Veteran's thoracolumbar condition, to include whether the Veteran's symptoms amount to functional ankylosis, the examiner was asked to comment as to whether range of motion measurements for flare-ups and on passive range of motion can be estimated for the April 2017 VA examination. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11?Vet. App.?268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24?Vet. App.?167, 176 (2010); Dyment v. West, 13?Vet. App.?141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Following the August 2024 Board remand, a new VA examination was obtained in September 2024. The examiner recorded the Veteran's reports of current symptoms of muscle spasms, chronic back pain, and locking up. The Veteran reported flare ups occurring twice a month for one week at a time following increased activity and reported that his flare ups include muscle symptoms and his back locking up with limited range of motion. The Veteran's functional impairment experienced during a flare-up was described as the Veteran needing to rest until pain subsides. While the examiner provided active range of motion testing and indicated that the Veteran's passive range of motion was the same as his active motion, the examiner failed to provide range of motion testing in weightbearing and non-weightbearing. Additionally, while the examiner noted that the Veteran had pain with active and passive motion, the examiner failed to indicate at which point this pain was observed, to include whether or not the pain amounts to unfavorable ankylosis so as to warrant a higher evaluation under the rating schedule. In Correia v. McDonald, 28 Veteran. App. 158 (2016), the United States Court of Appeals for Veterans Claims emphasized that 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-weightbearing. Findings consistent with Correia, DeLuca, and Mitchell were not provided in the September 2024 VA examination report and, as such, the examination is inadequate for rating purposes. Additionally, the September 2024 VA examiner failed to address whether the Veteran's reported symptoms amount to functional ankylosis and failed to comment as to whether range of motion measurements for flare-ups and on passive range of motion could be estimated for the April 2017 VA examination. While the RO attempted to obtain an addendum opinion in January 2025 regarding range of motion measurements from the 2017 VA examination, the VA examiner failed to provide the requested opinion. The Board finds the September 2024 and January 2025 VA examinations to be inadequate and that, as a result, there has not been substantial compliance with the Board's prior remand directives and corrective action is needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, an additional VA examination should be obtained to assess the severity of the Veteran's service-connected thoracolumbar spine. 2. Entitlement to service connection for a skin condition, to include onychomycosis and xeroderma, is remanded. The Veteran contends that he has a skin condition, claimed as onychomycosis and xeroderma, related to his service. He contends that he has onychomycosis and xeroderma of the feet. See May 2018 Notice of Disagreement (NOD). He reports that he experienced toe fungus during service that was treated with a topical medication that did not help and that he has continued to experience chronic toenail fungus since service. April 2017 VA Examination. The Veteran's service treatment records (STRs) note a defect of papulosquamous dermatitis noted on the back during his November 1981 separation examination. In the August 2024 Board remand, the Board observed that the addendum opinion obtained in March 2024 included identical opinions on causation and aggravation. The Board further found the March, August, and September 2023 addendum opinions to be inadequate as the examiners provided identical opinions for both causation and aggravation and did not provide clear rationale for the conclusions reached. Accordingly, the Board remanded this matter to obtain a VA examination and opinion. A VA medical opinion was obtained in September 2024. The examiner opined it is less likely than not that the Veteran's onychomycosis is due to or the result of his service-connected bilateral plantar fasciitis with pes planus. The examiner indicated that the two conditions are not medically related, and onychomycosis is a separate entity entirely from bilateral plantar fasciitis with pes planus. The examiner determined that the medical literature failed to demonstrate a causal relationship. While the examiner noted the Veteran's report of toenail issues during service, the examiner observed that the Veteran was seen for other conditions while in service but not for any toenail conditions. The examiner found that the Veteran has dystrophic toenails and that these changes occur due to a number of possible reasons. The examiner then indicated that the Veteran has tinea pedis, but it would be speculation to say that the Veteran's tinea pedis caused onychomycosis as the only skin condition noted on his separation examination was dry skin patches on the back. The examiner concluded that the Veteran's onychomycosis is the most common cause of nail dystrophy in adults, and such occurs frequently as a complication of trauma or underlying dermatoses. The examiner noted that mild pes planus is not related to nail conditions and even severe pes planus does not cause onychomycosis. The examiner indicated that the condition is seen in 5 to 20 percent of the population depending on the age and gender of the patients, environmental factors and climate, profession, hygiene conditions, comorbidities, and habit of wearing almost airtight shoes and one of the most important risk factors is hereditary susceptibility. Regarding aggravation, the examiner determined that a baseline level of severity could not be determined as the medical evidence is not sufficient to support such a determination. The examiner opined that the Veteran's onychomycosis is not at least as likely as not aggravated beyond its natural progression by his service-connected bilateral plantar fasciitis with pes planus. As supporting rationale, however, the examiner reproduced half of the rationale provided with the causation opinion. The September 2024 VA examiner similarly opined that it is less likely than not that the Veteran's xeroderma is due to or the result of his service-connected bilateral feet conditions. The examiner indicated that the conditions are not medically related and xeroderma is a separate entity entirely from the bilateral feet conditions. A thorough review of the medical literature failed to demonstrate a causal relationship, and the examiner determined that a nexus had not been established. Further rationale was not provided. Regarding aggravation, the examiner determined that a baseline level of severity could be determined, as the Veteran reported experiencing dry skin called "jungle rot" on his feet in the service and that he was given a cream to treat the condition. The examiner determined that aggravation of the condition would not be possible as the skin conditions are located in different parts of the feet. The examiner remarked that this condition is actually called athletes foot or tinea pedis and is treated with antifungal creams. The examiner noted that the Veteran did have xeroderma noted on his separation examination and that at that time, it was on his back. The examiner indicated that the current severity of the condition is not greater than the baseline. The examiner did not address whether the Veteran's xeroderma was aggravated by his service-connected condition. The Board finds the September 2024 VA opinion to be inadequate and that, as a result, there has not been substantial compliance with the Board's August 2024 remand directives and corrective action is needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The September 2024 VA examiner failed to provide adequate rationale in support of the opinions provided and failed to consider the Veteran's contention in providing opinions. The examiner further failed to include clearly separate rationale in support of the causation and aggravation opinions provided. As causation and aggravation are independent concepts, two opinions should have been provided with separate findings and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). On remand, an additional VA opinion should be obtained to assess the etiology of the Veteran's skin condition. 3. Entitlement to a TDIU is remanded. As the Veteran's claim for increased ratings for his service-connected lumbar spine condition and claims for service connection could affect the claim for a TDIU, the Board finds that these issues are inextricably intertwined and that a decision on the TDIU claim at this time would be premature. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, to date, the Veteran has not submitted a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, despite multiple requests to the Veteran to The matters are REMANDED for the following action: 1. Schedule the Veteran for?an examination to determine the severity of the service-connected thoracolumbar spondylosis and degenerative disc disease of the lumbar spine. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings found on examination?to be associated with this disability must be reported in detail. The examiner should test the current range of motion and pain in the Veteran's thoracolumbar spine in active and passive motion as well as weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he/she should clearly explain why that is so.?In reporting the results of range of motion testing, the examiner should identify the points at which pain begins. Also, the examiner should describe any current functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of the pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. ? Should the examiner state that he/she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flareup, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding the Veteran's flareups by alternative means.? The examiner must also assess all neurological abnormalities due to the Veteran's service-connected thoracolumbar spondylosis and degenerative disc disease of the lumbar spine. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 2. Obtain a VA medical opinion from an appropriate clinician to determine the etiology of the Veteran's skin condition. The record must be made available to, and be reviewed by, the VA examiner in conjunction with this evaluation. If deemed necessary, the Veteran should be scheduled for an examination. After reviewing the claims file, the examiner is asked to do the following:? a. Opine as to whether it is at least as likely as not that any such skin condition, to include onychomycosis and xeroderma, onset in, or is otherwise etiologically related to,?the Veteran's service. In other words, is any diagnosed skin condition consistent with the Veteran's reported in service experiences, to include his reports of toe fungus treated during service and the documented defect of papulosquamous dermatitis on the back noted during his November 1981 separation examination? b. Notwithstanding the above, opine as to whether it is at least as likely as not that the Veteran's skin condition was caused or aggravated by his service-connected bilateral plantar fasciitis with pes planus. Causation and aggravation are two separate inquires, and both must be answered. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 3. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability and advise him to complete and return the form in support of his claim for a TDIU. If the completed form is returned, conduct any additional development that may be warranted based upon the information contained therein. Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Goreham, A. 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.