Citation Nr: 18141233 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 14-08 871 DATE: October 10, 2018 REMANDED Entitlement to higher initial disability ratings for lumbar strain, status post discectomy with residuals, currently evaluated as 10 percent disabling prior to April 2, 2018, and rated as 20 percent disabling effective April 2, 2018 is remanded. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND Lumbar strain, left lower extremity radiculopathy The Veteran underwent VA examinations in April 2012, November 2016, and April 2018. None of the examination reports provide sufficient evidence to warrant increased ratings. However, the Veteran has consistently noted that his back pain is constant; but that he experiences flare-ups of pain. The VA examiners noted that the Veteran experienced flare-ups; but they failed to render an opinion regarding the additional loss of function during these flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court found inadequate an examiner’s failure to estimate motion loss in terms of degrees during periods of flare-ups on the basis that they did not actually observe such flare-ups first hand. In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. In the absence of an opinion regarding functionality during a flare-up (measured in terms of an estimated loss of motion), the Board finds that the prior examinations are inadequate, and that a new examination is warranted. Entitlement to a TDIU The Veteran’s claim for a TDIU is dependent on whether the Veteran’s service connected disabilities render him unable to secure or follow a substantially gainful occupation. As such, the claim is inextricably intertwined with the issues of whether increased ratings are warranted for the Veteran’s service connected lumbar strain and left lower extremity radiculopathy. The matters are REMANDED for the following action: Schedule the Veteran for an examination of the current severity of lumbar strain and left lower extremity radiculopathy. 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 the lumbar strain and left lower extremity radiculopathy and discuss the effect of the Veteran’s these disabilities 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). The AOJ should advise the examiner that all joints examination should comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017) on assessing any functional loss due to flare-ups and use over time; Correia v. McDonald, 28 Vet. App. 158 (2016) on how range of motion is tested; and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has held that a lack of opportunity to observe a flare-up is not a sufficient basis for declining to estimate its functional effects. The examiner should provide an estimate and is free to indicate the level of confidence in such estimate on a scale of 1 to 5, with 5 very the most confident and 1 being the least confident. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel