Citation Nr: 25008972 Decision Date: 07/09/25 Archive Date: 07/09/25 DOCKET NO. 12-32 620 DATE: July 9, 2025 REMANDED For the period prior to April 4, 2017, entitlement to an evaluation in excess of 10 percent for intervertebral disc syndrome (IVDS) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1972 until honorable discharge in May 1976. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Regional Office of the Department of Veterans Affairs (VA). The Veteran appealed the initial rating, and the Board remanded the claim in October 2016. During the subsequent development the Regional Office issued a partial grant, increasing the Veteran's rating to 40 percent effective April 4, 2017. The claim was then remanded again in June 2018. The Board denied the claim in October 2019 and the Veteran appealed. The Court of Appeals for Veterans Claims (Court) vacated the denial and remanded the claim to the Board. The Board then remanded the claim in April 2022 and April 2023 for further development, to include a retrospective opinion on the severity of the Veteran's spine disability. The Board denied the increased rating claim in an April 2024 rating decision. The Veteran appealed and the claim now returns to the Board pursuant to a Joint Motion for Partial Remand and Court remand. The Court did not disturb the April 2024 Board decision addressing the IVDS rating after April 4, 2017. For the period prior to April 4, 2017, entitlement to an evaluation in excess of 10 percent for intervertebral disc syndrome (IVDS). The Joint Motion for Partial Remand states that the Board erred by failing to provide an adequate statement of reasons or bases. Specifically, the Board failed to consider and apply 38 C.F.R. § 4.45 and to consider and address the Veteran's references to entitlement under 38 C.F.R. § 3.321(b). See DeLuca v. Brown, 8 Vet. App. 202, 207 (1995); See also Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Over the period on appeal, the Veteran has had seven VA examinations, in June 2010, January 2011, and October 2013. Additionally, the Veteran was taking medication during this period to treat the IVDS back pain. See, e.g. June 2013 VA Treatment Records (reporting the Veteran was prescribed cyclobenzaprine, naproxen, and tramadol). The claim must be remanded in order to comply with precedential decisions from the Court. Specifically, the Board requires a medical opinion addressing the severity of the Veteran's claim without considering the ameliorative effects of medication. Importantly, the Board may not consider the ameliorative effects of medication when those effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) ("The Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law."). More specifically, the Court held that if the diagnostic code under which the veteran's disability is rated "does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication" when assigning a rating. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Recently, in Ingram v. Collins, the Court reaffirmed its central holding in Jones and held that the Board must discount the beneficial effects of medication when assigning a rating for a musculoskeletal disability because the applicable diagnostic codes and regulations pertaining to musculoskeletal disabilities do not explicitly contemplate medication use. No. 23-1798, 2025 U.S. App. Vet. Claims LEXIS 327 (March 12, 2025). In order to comply with the Court remand and the Ingram case, the appeal must be remanded. The matters are REMANDED for the following action: 1. Obtain a new VA disability benefits questionnaire examination regarding the severity of the Veteran's lumbar spine and intervertebral disc syndrome (IVDS) disability from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. The examiner must provide an opinion on the following: (a.) Discuss the below from April 7, 2010, until April 4, 2017. (b.) Provide a retrospective opinion for the above date range on the severity of the Veteran's lumbar spine and intervertebral disc syndrome (IVDS) disability. Complete the lumbar spine disability benefits questionnaire. Interview the Veteran regarding the symptoms and severity of the disability for this period as well as reviewing the file. (c.) Discuss the DeLuca factors found in the questionnaire discussing less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, etc. (d.) Discuss the symptoms associated with the Veteran's lumbar spine and intervertebral disc syndrome (IVDS) disability. (e.) Attempt to describe what the severity of the Veteran's lumbar spine and intervertebral disc syndrome (IVDS) disability would be without the ameliorative effects of medications, including, but not limited to, cyclobenzaprine, naproxen, and tramadol. The examiner is reminded to consider the Veteran's lay statements regarding the severity of the disability as the Veteran is legally permitted to report symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertions. A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should identify what evidence is necessary to offer an opinion and why such evidence cannot be obtained. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Johnston, Steven 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.