Citation Nr: 18146484 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 17-10 993A DATE: October 31, 2018 REMANDED Entitlement to increased rating higher than 20 percent for a lumbar spine disability is remanded. Entitlement to increased rating higher than 20 percent for right lower extremity radiculopathy associated with lumbar spine disability is remanded. Entitlement to increased rating higher than 10 percent for left lower extremity radiculopathy associated with lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to June 1970 with an additional service in the Puerto Rico National Guard, including a period of active duty for training (ACDUTRA) from July 8, 1975 to July 20, 1975. Initial Matter The Board notes that in October 2015 the issue of entitlement to service connection for a right elbow condition was remanded for further development; however, this issue is still being developed by the RO and has not been returned to the Board. Additionally, the Veteran has a different representative for that issue. As such, it will be decided at a later time. Back and Associated Bilateral Lower Extremity Radiculopathy and SSA Records The Board finds that a remand is necessary to provide the Veteran with an adequate VA examination to determine the current severity of his back and associated bilateral lower extremity radiculopathy disabilities. In addition, while a October 2002 decision from the Social Security Administration (SSA) is associated with the claims file (granting benefits for a period from 1999 to 2000), VA treatment records dated in January 2018 indicate that the Veteran was in receipt of SSA benefits; however, there is no indication that these records were requested. Lastly, the Veteran submitted private treatment records in June 2017 along with a waiver of Agency of Original Jurisdiction (AOJ) consideration. Nevertheless, relevant VA generated treatment records were associated with the claims file in February and May 2018, the RO did not issue a supplemental statement of the case, and neither the Veteran nor his representative submitted a waiver of AOJ consideration. Therefore, the Board may not consider the evidence in the first instance. 38 C.F.R. § 20.1304(c) (2017). Notably, in connection with his claim for increase, the Veteran underwent a VA examination for his back disability in November 2016. The examiner confirmed diagnoses of lumbar spondylosis/disc herniation, lumbar strain, and right and left lower extremity radiculopathy. The Veteran reported flare-ups and functional loss after repetitive use over time. The examiner stated that the examination was medically consistent with the Veteran’s statements describing flare-ups and functional loss with repetitive use over time; however, the examiner opined that although pain could significantly limit functional ability during flare-ups or repeated use over time, it was not possible to estimate additional limitation in terms of range of motion, because it will be speculative, since the examination was not done during a flare-up or immediately after repetitive use over a period of time. The Board notes that the examiner did not use the information provided by the Veteran or obtain additional information from the Veteran or the treatment records such as the frequency, duration, characteristics, severity, or functional loss with repetitive use or during flare-ups. The Court held that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner.” See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Furthermore, no findings for active versus passive motion were provided. Thus, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Therefore, a new examination must be obtained before the claim can be decided on the merits. Lastly, the Board finds that the bilateral lower extremity radiculopathy is directly associated with the Veteran’s back disability, and as such, will defer a decision on these issues pending the proposed development. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records since May 2018 are associated with the claims file. 2. Contact the Social Security Administration (SSA) and request copies of SSA’s determination on the Veteran’s claim for SSA disability benefits, as well as copies of the complete medical records considered in that determination. A copy of any response from SSA, including any records obtained and/or a negative reply, should be included in the claims file. 3. Then, provide the Veteran with a VA examination to determine the severity of his back disability and associated bilateral lower extremity radiculopathy. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his back and associated bilateral lower extremity radiculopathy disabilities. In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in 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. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). A complete rationale should be provided. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel