Entitlement to a rating in excess of 20 percent for intervertebral disc disease of the lumbar spine (low back disability) prior to June 19, 2024, is remanded.

Citation Nr: 26001456 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 14-41 495A DATE: January 30, 2026 REMANDED Entitlement to a rating in excess of 20 percent for intervertebral disc disease of the lumbar spine (low back disability) prior to June 19, 2024, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1972 to January 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO, in pertinent part, granted service connection and a 20 percent rating for intervertebral disc disease of the lumbar spine, effective December 4, 2009, and denied entitlement to service connection for a right leg condition and entitlement to a TDIU. After remanding the issues on appeal to the agency of original jurisdiction (AOJ) for further development in May 2018 and April 2020, the Board, in a July 2021 decision, in relevant part, denied a rating in excess of 20 percent for intervertebral disc disease of the lumbar spine; a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity; and an effective date earlier than October 3, 2018, for the award of service connection for peripheral neuropathy of the right lower extremity. At the same time, the Board also remanded the issue of entitlement to a TDIU to the AOJ for additional development. The Veteran appealed the Board's denial of a higher rating for the low back disability and entitlement to an earlier effective date for the award of service connection for peripheral neuropathy of the right lower extremity to the United States Court of Appeals for Veterans Claims (Court). In an October 2022 memorandum decision, the Court vacated the Board's decision insofar as it denied those two issues and remanded those issues to the Board for further proceedings consistent with the Court's decision. Meanwhile, after completing the development requested in the Board's July 2021 remand, the AOJ continued the denial of the Veteran's claim for a TDIU and returned that issue to the Board. See November 2022 Supplemental Statement of the Case (SSOC). In August 2023, the Board granted an earlier effective date of December 4, 2009, for the award of service connection for peripheral neuropathy of the right lower extremity. The Board also remanded the issues of entitlement to a higher rating for a low back disability and entitlement to a TDIU to the AOJ for additional development. On remand, after taking further action, the AOJ increased the rating for the Veteran's low back disability to 40 percent, effective June 19, 2024. See July 2024 Rating Decision. The AOJ otherwise confirmed and continued the prior determinations and returned the case to the Board. See October 2024 SSOC. Most recently, in September 2025, the Board dismissed the issue of entitlement to a rating in excess of 40 percent for the low back disability from June 19, 2024, inasmuch as the Veteran withdrew that issue from appeal, and remanded the issues of entitlement to a higher rating for the low back disability prior to June 19, 2024, and entitlement to a TDIU. After taking additional action, the AOJ again confirmed and continued the prior determinations as to those issues and returned the case to the Board. See November 2025 SSOC. 1. Entitlement to a rating in excess of 20 percent for low back disability prior to June 19, 2024, is remanded. As noted above, the Board remanded this issue for additional development in September 2025. In the remand, the Board asked the AOJ to obtain a supplemental report from the VA examiner who offered an opinion as to the severity of the Veteran's low back disability in April 2025. The Board specifically requested that the examiner clarify whether it was her intent to opine that she could not offer an opinion with regard to how frequently the Veteran experienced the functional equivalent of favorable ankylosis, and how long that level of functional loss lasted; or whether it was her intent to opine that he experienced the functional equivalent of ankylosis with such frequency during the period on appeal that that level of functional loss could properly be considered his "baseline." In October 2025, an opinion was requested from an examiner other than the April 2025 examiner. The new examiner indicated that they could not answer the question that had been posed without resorting to mere speculation, as the question was directed to another examiner, and recommended that the Veteran be reevaluated or an addendum be obtained from the original examiner. In November 2025, an examination and medical opinion were obtained from another examiner. That examiner stated that the Veteran reported a flare up that required an emergency department visit within the year. The examiner explained that that severe pain episode was more than the Veteran's baseline and lasted 10 days according to the Veteran. During the flare-up, the Veteran was discharged home and was able to move in and out of bed to use the restroom, and did not have complete ankylosis. Although the AOJ obtained a new examination and medical opinion in November 2025, the examiner did not address the specific question posed by the Board in the September 2025 remand. Further, it is unclear from the record why an opinion was not obtained from the April 2025 examiner. Given the failure to fully comply with the Board's remand directives, the claim must again be remanded. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268, 271 (2011). 2. Entitlement to a TDIU is remanded. A determination with respect to whether a rating in excess of 20 percent is warranted for the Veteran's low back disability prior to June 19, 2024, could impact the decision regarding his entitlement to a TDIU during the period on appeal. Accordingly, the two issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, the Board will remand the TDIU issue as well. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Arrange to provide the record on appeal to the VA examiner who offered an opinion as to the severity of the Veteran's low back disability in April 2025. After reviewing the record, the examiner should be asked to prepare a supplemental report clarifying her prior opinion. Specifically, she should be asked whether it was her intent to opine that she could not offer an opinion with regard to how frequently the Veteran experienced the functional equivalent of favorable ankylosis, and how long that level of functional loss lasted; or whether it was her intent to opine that he experienced the functional equivalent of ankylosis with such frequency during the period on appeal that that level of functional loss could properly be considered his "baseline." If the April 2025 VA examiner is no longer employed by VA, or is otherwise unable to offer the requested opinion, that fact should be explicitly noted and arrangements should be made to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued an SSOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.