Citation Nr: 18146205 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 09-18 895 DATE: October 30, 2018 REMANDED Entitlement to a rating in excess of 20 percent for service-connected residuals of a low back strain with degenerative disc disease at L4-S1 (low back disability) prior to June 25, 2010, and from September 1, 2010, onward is remanded. Entitlement to a rating in excess of 10 percent for service-connected radiculopathy, sciatic nerve, left lower extremity, prior to November 1, 2016, is remanded. Entitlement to a rating in excess of 60 percent for service-connected radiculopathy, sciatic nerve, left lower extremity, beginning November 1, 2016, is remanded Entitlement to an initial compensable rating for service-connected radiculopathy, sciatic nerve, right lower extremity, prior to May 10, 2011, is remanded. Entitlement to a rating in excess of 10 percent for service-connected radiculopathy, sciatic nerve, right lower extremity, prior to November 17, 2015, is remanded. Entitlement to a rating in excess of 60 percent for service-connected radiculopathy, sciatic nerve, right lower extremity, beginning November 1, 2016, is remanded. Entitlement to an initial rating in excess of 30 percent for service-connected radiculopathy, femoral nerve, left lower extremity is remanded. Entitlement to an initial rating in excess of 30 percent for service-connected radiculopathy, femoral nerve, right lower extremity is remanded. REASONS FOR REMAND The Veteran served in the United States Army with active duty from October 1975 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May and October rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The May 2008 rating decision continued the Veteran’s 20 percent evaluation for his low back disability and 10 percent evaluations for his radiculopathy, sciatic nerve, left lower extremity and his migraine headaches. The October 2008 rating decision granted service connection for radiculopathy, sciatic nerve, right lower extremity and assigned a noncompensable evaluation effective June 11, 2008, which was increased to 20 percent effective November 18, 2015, as promulgated by a December 2015 rating decision. Jurisdiction of the Veteran’s file has subsequently been transferred to the RO in Atlanta, Georgia. In July of 2013, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Following the requested additional development as directed by the April 2017 Board remand directives, the Appeals Management Center (AMC) increased the Veteran’s rating for service-connected radiculopathy, sciatic nerve, bilateral extremities, to 60 percent effective November 1, 2016. Additionally, in the August 2017 rating decision, the AMC also granted service-connection for radiculopathy, femoral nerve, bilateral lower extremities and assigned an initial 30 percent evaluation. The Board assumed jurisdiction over those issues in the most recent Board remand in November 2017. Additionally, in the November 2017 Board remand, the remaining issues on appeal were remanded for further development to ensure compliance with a June 2016 order from the United States Court of Appeals for Veterans Claims (Court), which granted a June 2016 joint motion for partial remand; the Board’s September 2015 decision was vacated to the extent that it denied a rating in excess of 20 percent prior to June 25, 2010, and from September 1, 2010, onward for the Veteran’s low back disability on the basis that the Veteran’s last VA examination was inadequate. Unfortunately, and while the Board sincerely regrets the additional delay, a remand is again required for additional development before the Veteran’s claims may be adjudicated on the merits. 1. Entitlement to a rating in excess of 20 percent for service-connected residuals of a low back strain with degenerative disc disease at L4-S1 (low back disability) prior to June 25, 2010, and from September 1, 2010, onward is remanded. The Court’s recent holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) requires that the claim be remanded. In Sharp, the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “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. “Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “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.” Id. at 10. The Veteran’s January 2018 VA examination indicates that the Veteran does suffer from flare-ups, however, the examiner stated that he would be unable to provide an opinion on them without mere speculation as “there is no conceptual or empirical tests for making such a determination without directly observing function under the flare up condition.” See, January 2018 VA examination. The January 2018 VA examination does not contain a discussion of the Veteran’s statements regarding additional range of motion loss that occurs during flare-ups. Accordingly, the Board finds that a remand is required for an opinion on the extent of functional impairment or additional range of motion loss that results from the flare-ups, to include a discussion of the Veteran’s lay statements regarding additional range of motion loss that occurs during flare-ups. 2. Entitlement to a rating in excess of 10 percent for service-connected radiculopathy, sciatic nerve, left lower extremity, prior to November 1, 2016, is remanded. 3. Entitlement to an initial compensable rating for service-connected radiculopathy, sciatic nerve, right lower extremity, prior to May 10, 2011, is remanded. As the Veteran’s claims for entitlement to an increased rating for bilateral lower extremity radiculopathy of the sciatic are part and parcel of his claim for entitlement to an increased rating for his low back disability, the Board is also remanding those issues to be included in the Veteran’s new VA examination. 4. Entitlement to an initial rating in excess of 30 percent for the Veteran’s service-connected radiculopathy, femoral nerve, left lower extremity is remanded. 5. Entitlement to an initial rating in excess of 30 percent for the Veteran’s service-connected radiculopathy, femoral nerve, right lower extremity is remanded. With respect to the Veteran’s claims for entitlement to an increased rating for bilateral lower extremity radiculopathy femoral nerves, the Board notes that the Veteran’s most recent January 2018 VA examination is inadequate for rating purposes and does not comply with the Board’s November 2017 remand directives. Specifically, the November 2017 Board remand requested that the severity of the Veteran’s radiculopathy of both the sciatic and femoral nerves of his bilateral lower extremity be assessed. However, the January 2018 VA examination only assessed the severity of the Veteran’s radiculopathy of the sciatic nerve. Accordingly, a remand is also warranted to determine the current severity of the Veteran’s radiculopathy of the femoral nerves to assure compliance with the November 2017 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. 2. Once any outstanding treatment records have been obtained, schedule the Veteran for a VA examination with an examiner who has not previously examined the Veteran. The Veteran’s entire claims file, to include a copy of this remand, should be provided to the examiner. Following a complete review of the record, the examiner is asked to provide the following opinions: a. With respect to the low back, the examiner is to report the Veteran’s range of motion measurements in degrees. The range of motion should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. Any objective evidence of painful motion should be documented during each of the tests. 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 this is so. b. With respect to the low back, the extent of any weakened movement, excess fatigability and incoordination should also be described by the examiner. The examiner should assess any additional functional impact due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. c. With respect to the low back, the examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should consider all procurable and assembled data by obtaining all tests and records that might reasonably illuminate the medical analysis. This includes the Veteran’s statements regarding the extent of functional loss during flare-ups. d. The examiner should assess the severity of the Veteran’s radiculopathy of the sciatic nerve for his right lower and left lower extremities. e. The examiner should assess the severity of the Veteran’s radiculopathy of the femoral nerve for his right lower and left lower extremities. All opinions must be supported by a complete rationale. If the examiner must resort to speculation for any of the requested opinions, an explanation as to why this is so is required. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel