Citation Nr: 18147737 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 12-31 720 DATE: November 6, 2018 REMANDED The claim of entitlement to a rating greater than 20 percent for lumbar spondylosis with intervertebral disc syndrome (IVDS) is remanded. The claim of entitlement to an initial rating greater than 20 percent for radiculopathy of the sciatic nerve of the right lower extremity, from April 4, 2012 is remanded. The claim of entitlement to a rating greater than 10 percent for osteoarthritis of the right knee is remanded. The claim of entitlement to an initial rating greater than 10 percent for right knee instability, from May 21, 2012 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to March 1989. This appeal to the Board of Veterans Appeals (Board) arose from a June 2012 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas continued a 10 percent rating for osteoarthritis of the right knee and a 20 percent rating for lumbar spondylosis with IVDS; but awarded a separate 20 percent rating for radiculopathy of the right sciatic nerve of the lower extremity (effective April 4, 2012), and a separate 10 percent rating for right knee instability (effective May 21, 2012). In July 2012, the Veteran filed a notice of disagreement (NOD) interpreted as expressing disagreement with the ratings continued and assigned. A statement of the case on all four claims was issued in July 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals), also listing all four claims, in November 2012. A supplemental SOC (SSOC) reflecting the continued denials of higher ratings was issued in October 2013. In February 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In July 2016 and August 2017, the Board remanded these matters to the agency of original jurisdiction (AOJ) for further development. Unfortunately, the Board finds that further AOJ action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2017, the Board remanded the claims for higher ratings for the right knee and lumbar spine for VA examinations that complied with Correia v. McDonald, 28 Vet. App. 158 (2016), a case involving evaluation of a knee disability. In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing, “wherever possible,” for pain on both active and passive motion, and in weight bearing and non-weight bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). See Correia, 28 Vet. App. at 168-70. The Veteran was afforded VA examinations in November 2017. Regarding the lumbar spine, the examiner recorded right knee flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally and rotation to 30 degrees bilaterally. With regards to the right knee, the examiner recorded flexion to 90 degrees, and extension to 90 degrees. It is wholly unclear whether these range of motion results were conducted in weight bearing or non-weight bearing or passive motion or active motion. Here, the Board finds the November 2017 examination reports inadequate for rating purposes in light of the Court’s decision in Correia. The report of those examinations reflects that range of motion measurements were taken of the right knee and lumbar spine. However, the report only includes a single set of range of motion measurements for the right knee and lumbar spine, and no indication as to whether such measurements are for active or passive motion, or in weight bearing and non-weight bearing. Under these circumstances, the Board concludes that substantial compliance with the August 2017 remand directives for these claims has not been achieved. See D’Aries v. Peake, 22 Vet. App. 97, 105-06 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, further remand of these matters to obtain the previously requested examination findings is necessary. See Stegall, supra. As for the claims for higher ratings for right knee instability and radiculopathy of the sciatic nerve of the lower right extremity, as noted previously, the rnew VA examinations for the right knee and lumbar spine will yield information pertaining to evaluations of those disabilities. Thus, given that the requested examinations will yield evidence relating to the claims for increased ratings for right knee instability and radiculopathy of the sciatic nerve of the lower right extremity, those are being remanded, as well. Prior to arranging for the Veteran to undergo further examinations, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the appellant provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical and/or employment records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. Adjudication of each higher rating claim should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—are appropriate. The matters are hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any claim(s) on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran responds, obtain all identified evidence following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA knee examination, by an appropriate medical professional, The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. The examiner should conduct range of motion testing of the right knee (expressed in degrees) on both active motion and passive motion and in both weight bearing and non-weight bearing. The examiner should also conduct range of motion testing of the left knee, for comparison purposes. 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 so state and explain why. On range of motion testing, the examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. Also, if the Veteran is not examined during a flare up, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should indicate whether there is any ankylosis in the right knee, and, if so, whether it is favorable or unfavorable, and the angle at which the knee is held. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA spine examination by an appropriate medical professional. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. The examiner should conduct range of motion testing of the thoracolumbar spine (expressed in degrees) in active motion, passive motion, weight-bearing, and non-weight-bearing, as appropriate. 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 so state and explain why. The examiner should render specific findings as to whether, during such testing there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. Also, if the Veteran is not examined during a flare up, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the thoracolumbar spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Further, the examiner should indicate whether the Veteran has any ankylosis of the lumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. With respect to neuorological manifestations of lumbar spine disability, the examiner should assess the severity of already service-connected radiculopathy of the sciatic nerve of the right lower extremity. The examiner should also identify any additional chronic neurological manifestation(s) of the service-connected lumbar spine disability; and for each such identified additional manifestation, should indicate whether such manifestation constitutes a separately ratable disability and, if so, should provide an assessment of the severity of such disability. Further, considering all orthopedic and neurological manifestations of the lumbar spine disability, the examiner should render findings appropriate for evaluating the disability as intervertebral disc syndrome (IVDS), commenting as to the total duration and frequency of any incapacitating episodes (defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician) over the past 12 months: (a) at least one week, but less than 2 weeks; (b) at least two weeks but less than 4 weeks; (c) at least 4 weeks but less than 6 weeks; or (d) at least 6 weeks. All examination findings/testing results, along with complete rationale for the conclusions reached, must be provided. 5 To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 1. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining matters on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include, for each higher rating claim, consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel