Citation Nr: 1804311 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-15 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis. 2. Entitlement to a rating in excess of 40 percent for status post burst fracture T12 with deformity, L-1 and degenerative disc disease. 3. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy. 4. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy, prior to March 5, 2015, and in excess of 20 percent from March 5, 2015. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from January 1989 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In November 2013, the Veteran testified during a Board videoconference hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims file. In December 2014, the Board issued a decision withdrawing the service connection claim for right ear hearing loss and the increased rating claims for tinnitus and left ear hearing loss, and restoring a 40 percent rating for status post burst fracture, T12 with deformity, L-1 and degenerative disc disease. The Board also remanded the claims for increased rating for status post burst fracture, T12 with deformity, L-1 and degenerative disc disease, right knee osteoarthritis, left lower extremity radiculopathy, and right lower extremity radiculopathy. The Veterans Law Judge who conducted the November 2013 hearing is no longer employed at the Board. The Veteran was provided an opportunity to have another Board hearing. In September 2017, the Veteran testified during Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board's review of the record reveals that additional development on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision. The Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing conditions, and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The Veteran has been afforded various examinations pertaining to his service-connected right knee disability, including examinations in 2015. Review of these examination reports reveals that range of motion testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted. In light of Correia, these VA examinations are insufficient. In addition, the Veteran reported during his 2017 Board hearing that this disability had worsened since the last examination, and was also productive of instability as well as limitations on motion. With respect to his back, the Board acknowledges that the Veteran is in receipt of the highest rating on the basis of limitation of motion in the absence of ankylosis of the spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. However, the disability may also be rated based upon incapacitating episodes of intervertebral disc syndrome. During the Veteran's 2017 Board hearing, he reported that his back goes out 3 to 4 times per month, usually for 2 to 3 days at a time, raising the issue of whether he may be entitled to a higher rating based upon incapacitating episodes. Accordingly, the Veteran should be afforded a new examination to determine the nature and severity of his service-connected right knee and lumbar spine disabilities, to include consideration of the range of motion testing requirements of Correia. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination). To the extent that the new VA examiner is asked to discuss any related neurological impairment and any neurological impairment is to be considered when addressing the claim for increased rating for the lumbar spine disability, the matter of entitlement to an increased rating for radiculopathy of the right and left lower extremities is inextricably intertwined with the claim for increased rating. See Parker v. Brown, 7 Vet. App. 116 (1994); 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 cannot be rendered unless both are adjudicated). In addition, the Veteran has reported worsening symptoms in his right and legs stemming from his lumbar spine disability. Accordingly, he should be afforded a new examination to determine the nature and extent of his right and left lower extremity radiculopathy. The Board further notes that the Veteran has indicated significant interference with his employment as a result of his back and knee problems. He reported during his Board hearing that he had missed about 6 weeks of work during the past year due to his back. The Veteran noted that a lot of his physical tasks at work were taken care of by his coworkers. He has also submitted reports from his employer regarding his absences from work. Pursuant to 38 C.F.R. § 3.321(b)(1), VA's Director of Compensation Service is authorized to approve an extraschedular evaluation if the case application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). As this is such a case, extraschedular consideration is remanded for referral to the Director of Compensation Service. Accordingly, the case is REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records, including updated VA treatment records. 2. Schedule the Veteran for a VA examination(s) to ascertain the current severity and manifestations of the Veteran's service-connected lumbar spine disability and any related neurological manifestations. The claims file should be made available to the examiner for review in connection with the examination. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 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. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should also indicate if there is ankylosis of the spine or resultant neurological impairment. With regard to the service-connected right and left lower extremity radiculopathy, the examiner should identify the nerve or nerves involved and determine the manifestations and severity. In addition, the examiner should describe the frequency and duration of any incapacitating episodes due to the thoracolumbar spine disability, if applicable. The examiner should also comment on the impact of the Veteran's lumbar spine and right and left lower extremity radiculopathy disabilities on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected right knee disability. The claims file should be made available to the examiner for review in connection with the examination. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner must also conduct these studies for the left knee as well. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right knee is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 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. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should also indicate if there is lateral instability or recurrent subluxation of the knee, and if so, whether it is slight, moderate or severe. The examiner should also comment on the impact of the Veteran's right knee disability on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 4. Refer the Veteran's claims for increased rating for right knee osteaoarthritis and status post burst fracture T12 with deformity, L-1 and degenerative disc disease on an extraschedular basis to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 3.321(b). 4. The AOJ should undertake any additional development it deems warranted. 5. Then, the AOJ should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. The Veteran 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). _________________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).