Citation Nr: 18145700 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 10-43 152 DATE: October 29, 2018 REMANDED Entitlement to service connection for degenerative disc disease of the lumbar spine, including degenerative arthritis, is remanded. Entitlement to service connection for radiculopathy, bilateral lower extremities, to include paralysis of the sciatic nerve, is remanded. Entitlement to an increased rating for degenerative arthritis of the spine, to include cervical spondylosis with disc protrusion C5-6 and C6-7, rated as 10 percent disabling prior to November 14, 2014, and 20 percent disabling thereafter, is remanded. Entitlement to an initial rating, in excess of 10 percent, for degenerative joint disease of the right ankle is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1972 to August 1977. This appeal comes before the Board of Veterans’ Appeals (Board) from several rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas (Agency of Original Jurisdiction (AOJ)). A January 2009 AOJ rating decision granted service connection for degenerative joint disease of the right ankle, and assigned an initial 10 percent rating effective July 15, 2004. A September 2009 AOJ rating decision denied service connection claims for degenerative disc disease of the lumbar spine, radiculopathy of the lower extremities and degenerative joint disease of the left ankle. A September 2010 AOJ rating decision implemented a Board’s decision which awarded service connection for cervical spine spondylosis, and assigned an initial 10 percent rating effective July 15, 2004. The Veteran limited the appeal to the initial rating assigned. Additionally, an August 2013 AOJ rating decision denied service connection claims for avascular necrosis of the right and left wrists. In a January 2016 rating decision, the AOJ denied entitlement to TDIU. In an October 2015 rating decision, the AOJ increased the Veteran’s disability rating for his service-connected cervical spine spondylosis with disc protrusion at C5-C6 and C6-C7, from 10 percent disabling to 20 percent effective November 14, 2014. The Board has rephrased this issue to reflect that a staged rating has been assigned. See Fenderson v. West, 12 Vet. App. 119 (1999). In June 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In conjunction with his Board hearing the Veteran submitted additional evidence with a waiver of AOJ review. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2016). In October 2017, the Board remanded the appeal to the AOJ for further development. 1. Entitlement to service connection for degenerative disc disease of the lumbar spine, including degenerative arthritis, is remanded. The Veteran claims entitlement to service connection for a lumbar spine disability. While the Board sincerely regrets the delay that this may cause, further development is needed prior to adjudicating this claim. The Board notes that the Veteran underwent a VA examination in November 2017 per remand directives requesting opinion as to whether the Veteran’s diagnosed degenerative disc disease of the lumbar spine was either (1) caused by or (2) aggravated (worsened beyond the normal progress of the disorder) by service-connected right ankle disability. The examiner opined that it was less likely than not that the Veteran’s lumbar spine disability was proximately due to or the result of service-connected right ankle disability. The examiner, however, did not specifically address the question of aggravation or provide a sufficient rationale. Therefore, the Board requires an addendum opinion. 2. Entitlement to service connection for radiculopathy, bilateral lower extremities, to include paralysis of the sciatic nerve, is remanded. The issue of service connection for right lumbar radiculopathy must be remanded for an addendum medical opinion. The Veteran was afforded a VA examination in November 2017 to assess whether he had lumbar radiculopathy and whether it was related to service-connected disability. While the examination report indicated mild bilateral lower extremity radiculopathy, with intermittent pain, paresthesias, and numbness, the examiner stated that the radiculopathy was related to a nonservice-connected condition of the lumbar spine. However, as the previous medical opinion on the lumbar condition is inadequate, this issue is not yet ripe for appellate review and must be deferred pending readjudication of the other remanded lumbar claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). As such, the Board finds that a new peripheral nerve examination, or addendum opinion, following the directed back examination, is needed to adjudicate this issue. 3. Entitlement to an increased rating for degenerative arthritis of the spine, to include cervical spondylosis with disc protrusion C5-6 and C6-7, rated as 10 percent disabling prior to November 14, 2014, and 20 percent disabling thereafter, is remanded. In Sharp v. Shulkin, No. 16-1385, decided September 6, 2017, the United States Court of Appeals for Veterans Claims clarified the responsibilities of a VA examiner and the Board when an examiner is asked to provide an opinion as to additional functional loss during flare-ups of musculoskeletal disability pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Case law and VA guidelines anticipate that examiners will offer flare-up opinions based on estimates derived from information procured from relevant sources, including lay (non-expert) statements. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. Sharp found a VA examination to be inadequate because the examiner, although acknowledging that the appellant was not then suffering from a flare of any of his conditions, failed to ascertain adequate information, such as frequency, duration, characteristics, severity, and functional loss, regarding the flare-ups by alternative means, to include obtaining an estimation of the functional effects, such as range of motion, directly from the Veteran. In this case, there is conflicting findings within the Disability Benefits Questionnaire. The examiner notes that the Veteran did not report flare-ups, but also states that the functional impact of flare-ups cannot be determined without resorting to mere speculation. This is contradictory and a new examination or addendum opinion is needed to clarify these findings. Additionally, the Veteran reported symptoms of flare-ups in his Board testimony which must be considered and addressed, to include in terms of functional loss, per Sharp. Therefore, the Board finds that the Veteran’s claim of entitlement to an increased rating for his cervical spine condition must be remanded to obtain a new medical examination that appropriately addresses the Veteran's flare ups according to the guidelines of Sharp. 4. Entitlement to an initial rating, in excess of 10 percent, for degenerative joint disease of the right ankle is remanded. The Veteran underwent a VA examination for the right ankle in October 2017. The examiner noted the Veteran was not evaluated immediately after repetitive use over time and, as such, was unable to say with mere speculation any additional motion loss. However, the examiner did not ascertain from the Veteran any information regarding the functional impact, to include on his range of motion, that occurs during his reported flare-ups. As such, applying Sharp, this examination is inadequate and another examination is needed to adjudicate this issue. 5. Entitlement to TDIU is remanded. The development requested in connection with the foregoing claims could have bearing on whether an award of TDIU is proper. Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of those other remanded claims. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and outstanding private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Return the November 2017 examination report to the VA examiner for an addendum opinion on the issue of entitlement to service connection for lumbar spine disability as secondary to service-connected bilateral ankle disability. If the examiner is unavailable, forward the claims folder to an appropriately qualified examiner. The need for additional examination is left to the discretion of the examiner. After reviewing the claims file, the examiner should answer the following questions: Whether it at least as likely as not (50 percent probability or greater) that the diagnosed degenerative disc disease of the lumbar spine with radiculopathy is either: (1) caused by OR (2) aggravated (worsened beyond the natural progression) by service-connected right and left ankle disabilities? In providing this opinion, the examiner should address whether there is any medical reason to accept or reject the Veteran’s belief that gait abnormality caused by service-connected bilateral ankle disabilities has caused or aggravated his degenerative disc disease of the lumbar spine with radiculopathy. If the examiner feels that the requested opinions cannot be rendered without resorting to mere speculation, the examiner must 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). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After completing the development above, afford the Veteran an appropriate VA examination to determine the nature and severity of his service-connected cervical spine and right ankle disabilities. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-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 VA examiner should provide a complete rationale for any opinions provided. 4. After completing the requested actions and any development deemed warranted, readjudicate the issues on appeal. If any benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael J. O'Connor