DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The veteran, who served from August 1962 to August 1965, appeals the denial of increased ratings for lumbar degenerative changes and the initial rating for right lower extremity radiculopathy. The Board granted an initial 20 percent rating for right lower extremity radiculopathy prior to September 6, 2013, finding the disability picture approximated moderate incomplete paralysis of the sciatic nerve, resolving doubt in the veteran's favor. However, the Board denied increased ratings for lumbar degenerative changes, finding that the evidence did not support ratings higher than the existing 20 percent and 40 percent, as the criteria for more severe functional loss or ankylosis were not met. The Board also acknowledged the veteran's complaints of pain and limitations but found the evidence did not demonstrate sufficient pathology for higher ratings under the spine general rating formula. For intervertebral disc syndrome, the Board accepted the diagnosis but found the evidence did not support the need for physician-prescribed bed rest required for higher ratings under the incapacitating episodes formula, and the preponderance of evidence was against the claim. The Board remanded the issue of entitlement to an increased rating for right lower extremity radiculopathy since September 6, 2013, to clarify nerve involvement and severity, and to obtain updated VA medical records. The issue of entitlement to TDIU prior to July 20, 2015, was also remanded as it was inextricably intertwined with the increased rating issue.

Rationale

Evidence did not show forward flexion limited to 30 degrees or less.; No evidence of unfavorable ankylosis of the thoracolumbar spine.; Pain and limitations did not meet criteria for higher rating based on functional impairment.

Full Decision Text

Citation Nr: 20010212
Decision Date: 02/06/20	Archive Date: 02/06/20

DOCKET NO. 14-01 879
DATE: February 6, 2020

ORDER

Entitlement to an initial rating in excess of 20 percent for lumbar degenerative changes from October 29, 2009 to July 11, 2013, and from September 1, 2013 to July 19, 2015 is denied.

Entitlement to an initial rating in excess of 40 percent for lumbar degenerative changes since July 20, 2015 is denied.

Entitlement to an initial rating 20 percent rating, and no more, for right lower extremity radiculopathy prior to September 6, 2013 is granted, subject to the laws and regulations governing the award of monetary benefits.

REMANDED

Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy since September 6, 2013 is remanded.

Entitlement to a total disability rating based on individual unemployability prior to July 20, 2015 is remanded.

FINDINGS OF FACT

1. For the periods from October 29, 2009 to July 11, 2013, and from September 1, 2013 to July 19, 2015, lumbar spine degenerative changes were not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 

2. For the period since July 20, 2015, lumbar spine degenerative changes are not manifested by unfavorable ankylosis of the entire thoracolumbar spine.

3. Resolving reasonable doubt in the appellant’s favor, the medical evidence indicates the Veteran has had an intervertebral disc syndrome throughout the appeal period, but the preponderance of the evidence is against finding that he experienced incapacitating episodes as defined by the rating schedule. 

4. Prior to September 6, 2013, the disability picture pertaining to the right lower extremity radiculopathy more nearly approximated moderate incomplete paralysis of the sciatic nerve.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 20 percent for lumbar degenerative changes from October 29, 2009 to July 11, 2013, and from September 1, 2013 to July 19, 2015 were not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243. 

2. The criteria for an initial rating in excess of 40 percent for lumbar degenerative changes since July 20, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243.

3. The criteria for an initial 20 percent rating, and no more, for right lower extremity radiculopathy are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1962 to August 1965. 

In December 2016, a videoconference hearing was held before the undersigned Veterans Law Judge. 

In February 2018, the Board remanded the appeal for additional development. 

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155.

Lumbar degenerative changes

In March 2011, VA granted entitlement to service connection for chronic back pain and assigned a noncompensable rating from October 29, 2009. The Veteran disagreed with the rating and in November 2013, it was increased to 20 percent also effective October 29, 2009. The Veteran subsequently perfected this appeal. 

In September 2015, VA increased the rating to 40 percent effective July 20, 2015 resulting in staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 

In September 2015, VA also granted entitlement to a temporary total evaluation for his lumbar spine disability from July 12, 
 chronic back pain and assigned a noncompensable rating from October 29, 2009. The Veteran disagreed with the rating and in November 2013, it was increased to 20 percent also effective October 29, 2009. The Veteran subsequently perfected this appeal. 

In September 2015, VA increased the rating to 40 percent effective July 20, 2015 resulting in staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 

In September 2015, VA also granted entitlement to a temporary total evaluation for his lumbar spine disability from July 12, 2013 to August 31, 2013 due to surgical treatment and convalescence. As that was a complete grant of the benefit sought for that period, only the stages prior to and after the Veteran’s temporary total evaluation for a lumbar spine disability are for consideration herein. 

The Veteran contends that the currently assigned ratings do not adequately reflect the severity of his disability. At his Board hearing he testified that he experiences continued back pain. He sees a pain management doctor and take numerous medications. He further reported increased pain during flareups that requires bed rest and that this has been going on for 10 years. 

Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. The provisions of 38 C.F.R. § 4.45 require consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in 38 C.F.R. §§ 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under 38 C.F.R. §§ 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of [38 C.F.R.] § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the [38 C.F.R.] § 4.71a criteria.”).

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In March 2012, the Veteran reported that he could not complete cardiac rehab in 2011 due to severe back pain. He also indicated that he had to give up various volunteer activities because of chronic and persistent back pain, to include difficulties sitting, standing, and lifting. He described a recent trip to the emergency
 based on the [38 C.F.R.] § 4.71a criteria.”).

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In March 2012, the Veteran reported that he could not complete cardiac rehab in 2011 due to severe back pain. He also indicated that he had to give up various volunteer activities because of chronic and persistent back pain, to include difficulties sitting, standing, and lifting. He described a recent trip to the emergency room and that he needed to stay in bed all day. He also reported limitations in his ability to complete normal tasks such as dressing, putting on shoes and socks, and walking. He stated that VA gave him a cane to help with walking. 

On VA examination in September 2013, range of thoracolumbar motion was forward flexion to 60 degrees with painful motion beginning at 60 degrees. Following repetitive use testing, forward flexion was limited to 45 degrees. The examiner indicated there was functional loss due to less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weightbearing. The examiner stated that the Veteran did not have intervertebral disc syndrome. 

Records dated in May 2014 indicate that the Veteran’s back pain was much improved with the medication Savella. A March 2015 record indicated that his back pain was better, and he was active. In May 2015, he fell and suffered a back strain. He was advised to stay as active as he could comfortably be, and it was noted that stretching would help reduce his pain. 

On VA examination conducted on July 20, 2015, the Veteran reported worsening low back pain with flareups. On physical examination forward flexion of the thoracolumbar spine was to 30 degrees with no objective evidence of painful motion. The Veteran was unable to perform repetitive use testing due to back pain. The examiner stated there was no evidence of an intervertebral disc syndrome. 

On VA examination in September 2015, the Veteran reported his back pain was worsening. On range of motion testing, forward flexion of the thoracolumbar spine was to 65 degrees with pain. The Veteran was able to perform repetitive use testing and there was no additional loss of function or range of motion after three repetitions. There was no ankylosis of the spine. The examiner opined that the Veteran did not have intervertebral disc syndrome. 

The Veteran underwent a VA neurosurgery consult in July 2018 and was scheduled for bilateral L3-4 and L4-5 laminotomies and foraminotomies in August 2018. 

The Veteran most recently underwent VA examination in October 2019. He reported that his lumbar spine surgery was a great help and he had been doing better although he reported daily continuous lower back and right leg pain. He reported trying to keep active and reported doing a water aerobics classes. He is not able to do bending activities and cannot do much work around the home. He reported flareups maybe 3 to 4 times a year which may last for up to a few weeks before completely returning to baseline. On range of motion testing, forward flexion was from 0 to 40 degrees with pain. Following repetitive use testing, forward flexion was limited to 35 degrees. Pain limited functional ability with repeated use and limitation was described as forward flexion from 0 to 30 degrees. With flareups, forward flexion was estimated to be limited to 25 degrees. 

On review, the criteria for a rating greater than 20 percent were not met or more nearly approximated for the periods from October 29, 2009 to July 11, 2013 and from September 1, 2013 to July 20, 2015. VA examination and treatment records during this period do not show forward flexion limited to 30 degrees or less, and there was no ankylosis. 

Similarly, for the period since July 20, 2015, the criteria for a rating in excess of 40 percent are not met or more nearly approximated. VA examinations and treatment records during this period do not show unfavorable ankylosis of the thoracolumbar spine. On the contrary, the Veteran is shown to have range of motion in all planes of movement.

In making these determinations, the Board acknowledges the Veteran’s complaints of pain and limitations, but the evidence does not demonstrate adequate pathology to support a higher rating based on functional impairment to include pain on motion or
 VA examination and treatment records during this period do not show forward flexion limited to 30 degrees or less, and there was no ankylosis. 

Similarly, for the period since July 20, 2015, the criteria for a rating in excess of 40 percent are not met or more nearly approximated. VA examinations and treatment records during this period do not show unfavorable ankylosis of the thoracolumbar spine. On the contrary, the Veteran is shown to have range of motion in all planes of movement.

In making these determinations, the Board acknowledges the Veteran’s complaints of pain and limitations, but the evidence does not demonstrate adequate pathology to support a higher rating based on functional impairment to include pain on motion or other factors. 

The Board has also considered whether a higher rating is warranted at any time during the appeal period under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board acknowledges that several VA examiners indicated that the Veteran does not have this condition. The October 2019 VA examiner, however, indicated that the Veteran has had this diagnosis much of the time since 2009 but not continually as it may be sporadic, heal, or respond to treatment at times. 

For purposes of this decision, the Board accepts that the appellant has a diagnosis of intervertebral disc syndrome throughout the appeal period. Intervertebral disc syndrome is rated either under the General Rating Formula for Diseases and Injuries of the Spine as discussed above or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243.

 Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.

For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id at Note (1).

In December 2019, the attorney argued that VA erred by not addressing intervertebral disc syndrome in the October 2019 supplemental statement of the case. She essentially argues that consideration of this diagnostic code would support a higher rating.

Review of the claims folder shows that throughout the appeal period the attorney has argued that a 60 percent rating is warranted based on incapacitating episodes. For example, in January 2017 she noted the Veteran’s testimony that he had flareups occurring at least once per month and lasting 3-4 days at a time. She further stated this was confirmed in the July 2015 VA examination. She also noted that VA medical records reflect he was in pain management and that he took multiple medications throughout the day. 

The July 2015 VA examination shows that the Veteran did report flareups with increased pain that occur once per month and last 3 to 4 days. He stated that he had to have bedrest during these episodes. 

Review of VA records does not document the need for physician prescribed  bedrest absent a surgical procedure. The October 2019 VA examiner discussed this matter in detail and indicated that bed rest is often recommended and may not always be documented thoroughly since it could be directed verbally or even just mentioned in passing, i.e., to take it easy or to lie down for a day or two. He further stated that it was not a prescription order entered into the system or written on a form. Regardless, there was no evidence found in the available documentation and it was based on the Veteran’s history. The Veteran confirmed that he did not have bed rest prescribed in the last year.

The Board acknowledges the Veteran’s reports and notes he is competent to describe his symptoms and treatment. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). The Board also acknowledges the Veteran’s sincere belief that bed rest is required (i.e., his back feels better when he is in
 lie down for a day or two. He further stated that it was not a prescription order entered into the system or written on a form. Regardless, there was no evidence found in the available documentation and it was based on the Veteran’s history. The Veteran confirmed that he did not have bed rest prescribed in the last year.

The Board acknowledges the Veteran’s reports and notes he is competent to describe his symptoms and treatment. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). The Board also acknowledges the Veteran’s sincere belief that bed rest is required (i.e., his back feels better when he is in a recliner or in bed) but does not find his lay assertions sufficient to establish the need for physician prescribed bed rest, nor does it find the overall evidence to be in equipoise on this point. As indicated, available documentation does not show acute signs and symptoms that are of such severity to require bed rest prescribed by a physician and treatment by a physician. Accordingly, evaluations greater than the 20 percent and 40 percent ratings currently assigned are not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 

The preponderance of the evidence is against the claims for increase and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3.

Right lower extremity radiculopathy prior to September 6, 2013 

In November 2013, VA granted entitlement to service connection for right lower extremity radiculopathy and assigned a 10 percent rating from September 6, 2013. The Veteran disagreed with the rating and effective date and perfected this appeal. 

In February 2018, the Board granted an effective date of October 29, 2009 for the award of service connection for right lower extremity radiculopathy.  The Board’s decision  was implemented in an April 2018 rating decision. In October 2019, VA increased the rating for right lower extremity radiculopathy to 20 percent effective September 6, 2013 resulting in staged ratings. Hart; Fenderson.

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. 38 C.F.R. § 4.124a. 

Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 

The Veteran underwent a VA physical therapy consult in May 2011. He reported numbness in both lower extremities and right hip nerve pain. In September 2011, sensation was intact to light touch in both lower extremities. Muscle stretch reflexes were reduced bilaterally at the patella and ankle. Muscle strength was 5/5 on the right. 

Private records dated in March 2011 indicate that strength was 5/5 at the hip, and for flexion and extension of the knee. Strength was 4/5 for ankle plantar and dorsiflexion. He had a foot drop with no movement on the left but 3/5 on the right. Deep tendon reflexes in the lower extremities were 1+. In July 2011, he had full lower extremity strength bilaterally. There was a positive straight leg test on the right. He demonstrated a stocking glove distribution on sensory examination and reflexes were attenuated. In August 2011, there was full strength in the lower extremities. The Veteran reported having straight leg raising pain, but he did not describe it as a radicular fashion but more of a tightness in the posterior portion of the legs. The pain was not consistent or constant, but worsened with ambulation or standing.  The pain improved when the appellant was lying flat. Diagnostic imaging did not reveal any lesions amenable to surgical intervention. 

A VA record dated in March 2012 indicates the Veteran was evaluated for possible polyradiculopathy. He reported pain down the posterior aspect of the lower extremities to the heels. He reported that his  legs were weak, and he was using a single point cane for balance
. In August 2011, there was full strength in the lower extremities. The Veteran reported having straight leg raising pain, but he did not describe it as a radicular fashion but more of a tightness in the posterior portion of the legs. The pain was not consistent or constant, but worsened with ambulation or standing.  The pain improved when the appellant was lying flat. Diagnostic imaging did not reveal any lesions amenable to surgical intervention. 

A VA record dated in March 2012 indicates the Veteran was evaluated for possible polyradiculopathy. He reported pain down the posterior aspect of the lower extremities to the heels. He reported that his  legs were weak, and he was using a single point cane for balance. He also reported numbness in the feet. On examination, reflexes were 2/4 to the bilateral patella and Achilles. Strength was 5/5 with initial give-way in the lower extremities. Sensation was intact to light touch. Electromyography/nerve conduction studies showed mixed axonal, demyelinating motor sensory peripheral neuropathy.

Private records dated in May 2013 note that sensation was decreased bilaterally distal to the ankles. Strength was 5/5 in the right lower extremity. Reflexes were 2+.

On VA examination dated September 6, 2013, the examiner described the Veteran’s radiculopathy as moderate.

Medical evidence suggests the Veteran has various conditions of the right lower extremity. Pursuant to the Board’s remand, the October 2019 VA examiner discussed the findings of neurogenic claudication and radiculopathy, and indicated that they were both caused by the Veteran’s lumbar disorder. He further stated that the diabetes caused mild symptoms and was not really an issue in comparison. Regarding the classification of the Veteran’s symptoms as “moderate” in 2013, the examiner stated it seems he has had moderate symptoms at times in the past. He noted that “moderate” usually implies more than just sensory symptoms or else severe sensory symptoms from his understanding of the disability benefits questionnaire instructions. 

Resolving reasonable doubt in the Veteran’s favor and assuming that all right lower extremity neurologic symptoms prior to September 6, 2013 were attributable to the service-connected lumbar spine disorder, the Board finds that the disability picture more nearly approximates moderate incomplete paralysis of the sciatic nerve.  Hence, an initial 20 percent rating is warranted. In making this determination, the Board notes the examiner’s description of the disability as moderate in the past as well as objective evidence of some reduced strength and reflexes. Objective findings, however, do not support a finding of moderately severe incomplete paralysis of the sciatic nerve. 

 

REASONS FOR REMAND

Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy since September 6, 2013

The September 2013 VA examination indicates the Veteran had moderate radiculopathy to include involvement of both the sciatic and femoral nerves. The examiner remarked that the Veteran had primarily neurogenic claudication related symptoms and examination findings, but there were symptoms and findings to support right L3 and L4 radiculopathy. She stated that he could also have bilateral L5-S1 radicular symptoms and findings that could not be definitively differentiated from his diabetic peripheral neuropathy on a single examination. 

In various correspondence and at the hearing, the attorney argues that the Veteran is entitled to separate 20 percent ratings under Diagnostic Codes 8520 (sciatic nerve) and 8526 (femoral nerve). 

The lower extremity includes five nerve branches and separate ratings may be assigned for symptoms that are separate and distinct, which do not overlap, and which are attributed to different lower extremity nerves, such as the sciatic and femoral. See M21-1, Part III.iv.4.N.4.f. 

The record contains inconsistent information as to what nerve branches are involved. The September 2013 VA examination indicates femoral nerve involvement in addition to sciatic nerve involvement, but this appears to be an isolated finding. In this regard, the 2015 VA examinations did not note involvement of any of the lower nerve branches, and the October 2019 examiner identified only involvement of the sciatic nerve. These examinations also indicated that the sensory examination was normal at the thigh/knee (L3/4) on the right.

On review, the Board finds that an addendum opinion is needed to determine whether any nerve branches other than the sciatic nerve are involved and, if so, to what degree since September 6, 2013.  

Updated VA medical records should also be obtained on remand. 38 C.F.R. § 3.159(c)(2). 

Entitlement to a total disability rating based on
 be an isolated finding. In this regard, the 2015 VA examinations did not note involvement of any of the lower nerve branches, and the October 2019 examiner identified only involvement of the sciatic nerve. These examinations also indicated that the sensory examination was normal at the thigh/knee (L3/4) on the right.

On review, the Board finds that an addendum opinion is needed to determine whether any nerve branches other than the sciatic nerve are involved and, if so, to what degree since September 6, 2013.  

Updated VA medical records should also be obtained on remand. 38 C.F.R. § 3.159(c)(2). 

Entitlement to a total disability rating based on individual unemployability prior to July 20, 2015

In October 2019, VA granted entitlement to a total disability rating based on individual unemployability effective July 20, 2015. The AOJ considered this a full grant of the benefit sought on appeal. 

Pursuant to Harper v. Wilkie, the issue of entitlement to a total disability rating based on individual unemployability prior to July 20, 2015 is still pending in conjunction with the claims for increased rating. Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to a total disability rating based on individual unemployability is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants individual unemployability benefits that do not span the entire period on appeal, the issue of entitlement to a total disability rating based on individual unemployability for an earlier period is still on appeal).

The AOJ did not include the issue of entitlement to individual unemployability prior to July 20, 2015 in the October 2019 supplemental statement of the case. In December 2019, the attorney argued that individual unemployability was warranted effective October 2009. 

On review, the issue of entitlement to individual unemployability prior to July 20, 2015 is inextricably intertwined with the increased rating issue remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue).

Following the implementation of the grant herein, as well as completion of the directed development and any additional development warranted, the issue must be adjudicated. 

The matters are REMANDED for the following action:

1. Obtain the Veteran’s VA treatment records for the period from July 2019 to the present. If the AOJ cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond.

2. Thereafter, return the October 2019 VA thoracolumbar spine examination for an addendum opinion. If the October 2019 examiner is no longer available, the requested information should be obtained from a similarly qualified examiner. The Veteran’s VBMS and Virtual VA/Legacy folders must be available for review. 

The examiner is to indicate whether there is objective evidence supporting a finding of service-related involvement of the femoral nerve. See September 6, 2013 VA examination report. If so, the examiner is requested to identify those findings and comment on the level of severity since September 2013. The examiner should also indicate if there is any overlap with findings pertaining to the sciatic nerve. 

A complete, well-reasoned rationale must be provided for any opinion offered. If the 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.

3. Following the implementation of the grant herein, completion of the directed development and any other development that is warranted, adjudicate the issue of entitlement to a total disability rating based on individual unemployability for the period prior to July 20, 2015. 

 

 

DEREK R. BROWN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Carsten, Counsel


 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.

3. Following the implementation of the grant herein, completion of the directed development and any other development that is warranted, adjudicate the issue of entitlement to a total disability rating based on individual unemployability for the period prior to July 20, 2015. 

 

 

DEREK R. BROWN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Carsten, 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.