Citation Nr: 1802025 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-00 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Evaluation of intervertebral disc syndrome, with degenerative arthritis, lumbar spine, currently rated as 10 percent disabling from November 1, 2008 and 40 percent from October 10, 2014. 2. Evaluation of radiculopathy, right lower extremity (previously evaluated as peripheral nerve, right tibial nerve), currently rated as 10 percent disabling from November 1, 2008 and 20 percent disabling from October 10, 2014 3. Evaluation of degenerative arthritis, right wrist, currently rated as 0 percent from November 1, 2008 and 10 percent from January 29, 2015. 4. Evaluation of chondromalacia, right knee, with degenerative changes, currently rated as 0 percent from November 1, 2008 and 10 percent from January 29, 2015. 5. Evaluation of degenerative arthritis, cervical spine; previously rated together with degenerative arthritis, lumbar spine with a single evaluation of 10 percent from November 1, 2008; and evaluated as a single disability with a noncompensable rating from October 10, 2014. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1984 to October 2008. During the course of his service, the Veteran was awarded numerous medals, including the Meritorious Service Medal with 2 oak leaf clusters, the Air Force Commendation Medal with two oak leaf clusters, and the Air Force Achievement Medal with 2 oak leaf clusters. He retired at the rank of senior master sergeant. This matter is before the Board of Veterans Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction is currently held by the Pittsburgh Foreign Cases Office (Foreign Office) in Pittsburgh, Pennsylvania. A Rating Decision dated June 12, 2015 granted increased evaluations for intervertebral disc syndrome, with degenerative arthritis, lumbar spine; degenerative arthritis, right wrist; chondromalacia, right knee, with degenerative changes; and radiculopathy, right lower extremity (previously evaluated as peripheral nerve, right tibial nerve). The Veteran's degenerative arthritis, cervical spine was previously evaluated with degenerative arthritis, lumbar spine with a single evaluation of 10 percent based on x-ray evidence of arthritis, with no painful or limited motion. The rating decision deferred the issue of a compensable evaluation for degenerative arthritis, cervical spine effective October 10, 2014 pending a VA examination. A March 2016 rating decision assigned a separate noncompensable evaluation for degenerative arthritis, cervical spine, effective October 10, 2014. This was based upon a January 2016 VA examination that found range of motion testing was within normal limits. As previously stated, the Veteran was also in receipt of a rating for the cervical spine, previously rated together with degenerative arthritis, lumbar spine with a single evaluation of 10 percent from November 1, 2008 to October 10, 2014. These issues are characterized accordingly on the title page. However, since these increases did not constitute a full grant of the benefits sought, the higher evaluation issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A remand is necessary for additional development. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range-of-motion testing be conducted whenever possible in cases of painful disabilities. The final sentence of that section provides, in relevant part, that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing. . ." The Court found that a VA examination of the joints must, wherever possible, include the results of the range-of-motion testing described in the final sentence of § 4.59. Here, the recent October 2014 thoracolumbar spine VA examination, multiple January 2015 VA examinations and a January 2016 examination do not comply with Correia because they do not include range-of-motion testing on active, passive, weight-bearing, and non weight-bearing or a statement to the effect that such testing was not possible or unnecessary in this case, such that the effects of pain on the Veteran's functioning may be adequately assessed under the provisions of 38 C.F.R. § 4.59. Notably, in Correia, the Court found similar range of motion testing to be inadequate. If VA provides an examination, that examination and opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board acknowledges there are staged ratings here. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). To the fullest extent possible, the VA examiner should provide a retrospective opinion concerning the severity of the Veteran's disability for both stages on appeal for each disability, as the first and second stages have been on appeal since the initial rating decision. In addition, regarding the Veteran's now separated cervical spine disability, a March 2016 rating decision assigned a separate noncompensable evaluation for degenerative arthritis, cervical spine, effective October 10, 2014. A January 2016 VA examination found that the Veteran's initial range of motion measurements were within normal limits. The VA examiner also found that there was no pain on motion, and that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time. Here, on remand, the VA examiner should be given an opportunity to comment on whether the 38 C.F.R. § 4.59 requirements are applicable to this particular Veteran's cervical spine disability given this history and the results of the January 2016 VA examination. VA must also consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that among the Veteran's contentions in his December 2009 NOD is a report that "There isn't a day that goes by that I don't have a problem with range of motion pain in my right leg." The Veteran is service-connected for radiculopathy, right lower extremity (previously evaluated as peripheral nerve, right tibial nerve), as well as his right knee. His statement indicates that the his range of motion is affected due to pain for the right leg, and therefore suggests that the VA examiner should also specifically opine as to the current severity of this disability affecting his right leg, factoring in the Veteran's lay reports. To afford the Veteran every benefit under the law while the issue affecting his right knee is being remanded, an examination of the severity of this condition is also in order. Finally, in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner's opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must "[E]licit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she c[an] not do so." Sharp, 29 Vet. App. at 35. Consequently, the Veteran must be afforded new VA examinations that comply with 38 C.F.R. § 4.59 and include all necessary information in view of the Veteran's lay reports, DeLuca, Correia, and Sharp. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for VA examinations by an appropriate examiner to determine the current degree of severity of his service-connected intervertebral disc syndrome; radiculopathy, right lower extremity (previously evaluated as peripheral nerve, right tibial nerve); degenerative arthritis, right wrist; chondromalacia, right knee, and degenerative arthritis of the cervical spine. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range-of motion testing for pain, in degrees, on both active and passive motion and in weight-bearing and non weight bearing for the back, right lower extremity, right wrist, and right knee. If any, the extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. The examiner should also offer an estimate as to additional functional loss during flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up. Given the staged ratings, the VA examiner is asked to provide a retrospective opinion from the period from November 1, 2008 to October 10, 2014 or January 29, 2015 respectively, depending on the disability, as appropriately indicated on the Rating Decision Codesheet or title page of this remand. In addition, regarding the Veteran's cervical spine, the examiner is asked to express an opinion regarding on whether the 38 C.F.R. § 4.59 requirements are applicable to this particular Veteran's cervical spine disability. Attention is directed to the results of the January 2016 VA examination in which the VA examiner found that the Veteran's initial range of motion measurements were within normal limits, there was no pain on motion, and that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).