Citation Nr: 1802545 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 08-30 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating, in excess of 10 percent, for spondylosis of the lumbar spine. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from July 1993 to July 1999. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction of the claim currently resides with the RO in San Diego, California. The Board remanded the appeal for additional development in January 2012, August 2015, and March 2017. Unfortunately, the Board finds that an additional remand is necessary prior to review of the Veteran's claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a new VA examination in May 2017, pursuant a March 2017 Board remand. In an October 2017 statement, the Veteran's representative contends that the May 2017 examination is not adequate because the examiner failed to articulate the point of onset of pain in the arc of movement during range of motion testing. Additionally, the Board finds that the VA examination did not include results for active motion, passive motion, weight-bearing motion, and non-weight-bearing motion as requested in the March 2017 remand. See Stegall v. West, 11 Vet. App. 268, 270 (1998); see also Correia v. McDonald, 28 Vet. App. 158 (2016). On remand for a new examination, the Board finds that it is also necessary to ensure that the Board has adequate information as to reported flare-up of pain in the lumbar spine. VA treatment records identify multiple complaints of pain in the lumbar spine and in the May 2017 VA examination report, the examiner noted that the Veteran reported experiencing flare-ups. The examiner indicated that she was unable to express any limits to functional ability without resorting to mere speculation as the examination showed pain only during range of motion, but did not provide any explanation as to why she could not estimate the Veteran's additional loss of motion caused by flare-ups based his own reports. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the United States Court of Appeals for Veterans Claims 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, the examiner must "elicit 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 she could not do so." Therefore, the examination does not adequately address the presence of flare-ups in light of the holding in Sharp. The Board finds that the claim for a TDIU is inextricably intertwined with the increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, medical evidence of record indicates that the Veteran is limited in bending, stooping, lifting, due to his back disability and sciatica, and he has additional limitations to sitting for extended periods of time due to his service-connected disabilities. The Board finds, therefore, that a medical opinion is necessary to address the Veteran's functional impact due to the combination of his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for supplemental VA orthopedic examination to determine the current nature and severity of his back disability. The record should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. Full range of motion testing must be performed. In the examination report, the VA examiner must clearly identify the point in the arc of motion where pain begins. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. 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 of his lumbar spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an estimate, in degrees, any additional limitation of motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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 note that the VA CLINICIAN'S GUIDE requires the examiner to estimate the range of motion "per [the] Veteran." See VA CLINICIAN'S GUIDE at Ch. 11. 2. After the above development has been completed, the AOJ should obtain a VA a medical opinion to address the functional impact or combined effect of the Veteran's service-connected disabilities. An examination is not required; however, if the VA examiner indicates that he or she cannot respond to the question without examination of the Veteran, such should be afforded the Veteran. The record should be made available for review in connection with this request. 3. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. 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 (2014). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).