Citation Nr: 18144114 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 14-14 399 DATE: October 23, 2018 REMANDED Entitlement to an initial evaluation in excess of 10 percent prior to April 20, 2017, and in excess of 20 percent thereafter for service-connected arm length discrepancy is remanded. Entitlement to an initial compensable evaluation prior to December 23, 2013, and in excess of 10 percent thereafter for service-connected nerve damage of the right forearm is remanded. Entitlement to an initial evaluation in excess of 10 percent prior to April 20, 2017 (excepting a period of temporary total disability from February 2, 2016, to June 30, 2016), and in excess of 40 percent thereafter for service-connected spondylolisthesis of the lumbar spine is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected impingement of the sciatic nerve affecting the left and right lower extremities is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from July 1986 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes it has included the issues of an increased evaluation for sciatic nerve impingement affecting the right and left lower extremities as part of this appeal, on the basis that these issues are neurological manifestations of the lumbar spine disability. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 10 percent prior to April 20, 2017, and in excess of 20 percent thereafter for service-connected arm length discrepancy is remanded. At the September 2017 VA examination of the Veteran’s right arm disability, the Veteran reported that he cannot lift a lot with his right arm because it causes his arthritis to bother him. He also reported flare-ups during which his arm throbs and his right thumb begins to twitch. However, the examiner did not solicit any further information about these episodes, such as their frequency and duration or whether the Veteran is able to use his arm during them. The examiner noted under the flare-ups section of the examination report that it would be mere speculation to determine whether pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups, as there was no conceptual or empirical basis for doing so without direct observation during a flare-up. This failure to solicit information about functional limitation during flare-ups renders the examination inadequate to determine the current severity of the Veteran’s service-connected spine disability. See Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017) (an examination is inadequate where examiner fails to obtain procurable information and estimate functional loss due to flare-ups based on all evidence, including lay statements). Therefore, a remand is necessary to obtain an adequate examination that addresses the functional limitation the Veteran experiences during flare-ups. 2. Entitlement to an initial compensable evaluation prior to December 23, 2013, and in excess of 10 percent thereafter for service-connected nerve damage of the right forearm is remanded. At the September 2017 VA examination of the Veteran’s right arm disability, the Veteran reported that his right arm throbs, his right thumb twitches at times, he regularly experiences pins and needles sensations, and he often drops items. These types of symptoms were not reported on previous examinations addressing the Veteran’s nerve damage of the right forearm. Because it appears that the nerve disability may have worsened since the last evaluation, a new VA examination is necessary to determine the current severity of the Veteran’s right forearm nerve damage. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 3. Entitlement to an initial evaluation in excess of 10 percent prior to April 20, 2017 (excepting a period of temporary total disability from February 2, 2016, to June 30, 2016), and in excess of 40 percent thereafter for service-connected spondylolisthesis of the lumbar spine is remanded. The Veteran was recently afforded a VA examination assessing the current severity of his service-connected spondylolisthesis of the lumbar spine. This evidence has not been addressed in a supplemental statement of the case. See 38 C.F.R. § 20.1304(c). Generally, the Board may not consider additional evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ), unless a waiver of initial AOJ review is obtained from the Veteran. Although VA law allows the Board to review new evidence submitted by the Veteran without waiver of AOJ review for cases such as this one, in which the substantive appeal was filed after February 2, 2013, this implicit waiver does not apply to evidence obtained by VA, including VA examinations. See 38 U.S.C. § 7105(a). A remand is therefore necessary for the AOJ to issue a supplemental statement of the case relevant to the November 2017 VA spine examination. 4. Entitlement to an initial evaluation in excess of 10 percent for service-connected impingement of the sciatic nerve affecting the left and right lower extremities are remanded. The nerve impingement issues affecting the left and right lower extremities are intertwined with the above remanded issue and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Send the Veteran and his representative a supplemental statement of the case that addresses the issue of entitlement to an initial evaluation in excess of 10 percent prior to April 20, 2017 (excepting a period of temporary total disability from February 2, 2016, to June 30, 2016), and in excess of 40 percent thereafter for service-connected spondylolisthesis of the lumbar spine. If any benefit sought on appeal remains denied, the case should be returned to the Board for further appellate consideration. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected arm length discrepancy. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 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 opinion estimating any additional degrees of limited 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). 3. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected nerve damage of the right forearm. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel