Citation Nr: 18140031 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 12-16 226 DATE: October 2, 2018 REMANDED The issue of entitlement to a rating for chondromalacia, right knee, in excess of 10 percent from May 22, 2009, to April 22, 2010, and in excess of 20 percent thereafter, is remanded. The issue of entitlement to a rating for chondromalacia, left knee, in excess of 10 percent from May 22, 2009, is remanded. The issue of entitlement to a rating for cervical strain with degenerative disc disease (DDD) in excess of 20 percent from September 18, 2009, is remanded. The issue of entitlement to a rating for radiculopathy, right upper extremity, in excess of 40 percent from September 18, 2009, is remanded. The issue of entitlement to a rating for degenerative arthritis, thoracic spine, in excess of 10 percent from May 22, 2009, to September 17, 2009, and in excess of 20 percent thereafter, is remanded. The issue of entitlement to an earlier effective date for degenerative arthritis, thoracic spine, prior to May 22, 2009, for the increased rating to 10 percent, and prior to September 18, 2009, for the increased rating to 20 percent, is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU), prior to September 18, 2009, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1981 to October 2001. These matters were most recently before the Board of Veterans’ Appeals (Board) in November 2016; they were remanded for additional development. The Board's remand requested that a VA examiner provide a retrospective opinion to May 2009 and determine if intervertebral disc syndrome was indicated, and if so, whether physician prescribed bed rest was required. The examiner was specifically to reconcile June 2009 and March 2010 VA examination reports. In a May 2017 addendum, a VA examiner stated that he had reviewed the May 2009 and March 2010 VBMS reports and found no evidence of intervertebral disc syndrome or physician prescribed bed rest. However, while he noted that the March 2010 report specifically said there was no incapacitation, he failed to reconcile this with the June 2009 report. Stegall v. West, 11 Vet. App. 268 (1998). In addition, while the record contains contemporaneous VA examinations regarding the Veteran’s right knee, left knee, cervical spine, right upper extremity and thoracic spine, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The reports do not provide relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Finally, because a decision on some of the remanded increased evaluation and earlier effective date issues could significantly impact a decision on the TDIU issue, the issues are inextricably intertwined. A remand of the TDIU claim is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his right knee chondromalacia, left knee chondromalacia, cervical strain with degenerative disc disease, radiculopathy of the right upper extremity and degenerative arthritis of the thoracic spine. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to each disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. With regard to the Veteran's thoracic spine disability, the examiner should provide a retrospective opinion (to May 2009) and determine if intervertebral disc syndrome is indicated, and if so, whether physician prescribed bed rest was required. The examiner should specifically reconcile the conflicting evidence (the June 2009 and March 2010 VA examination reports) as to whether the Veteran had incapacitating episodes resulting in physician prescribed bed rest at any point during the appeal period, and if so, for what duration. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue on the TDIU claim. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Davitian, Counsel