Citation Nr: 18148832
Decision Date: 11/08/18	Archive Date: 11/08/18

DOCKET NO. 13-10 918
DATE:	November 8, 2018
REMANDED
A rating in excess of 20 percent for lumbosacral strain with sacralization of L5 with joint space narrowing (lumbar spine disability) is remanded.
A rating in excess of 10 percent for degenerative joint disease (DJD) right knee is remanded.
A rating in excess of 10 percent for DJD of the left knee is remanded.
A total disability based on individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from July 1972 to June 1979 and from February 1983 to September 1996.
This matter is on appeal from an October 2012 rating decision.
In July 2015, the Veteran testified at a Board hearing.
1. A rating in excess of 20 percent for lumbar spine disability.
2. A rating in excess of 10 percent for DJD right knee is remanded.
3. A rating in excess of 10 percent for DJD of the left knee is remanded.
4. A TDIU
When last on appeal in September 2017, the Board remanded these claims for new VA examinations that complied with Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  Specifically, prior examinations revealed flare-ups of lumbar spine and knee symptoms, but examiners had not comment upon the functional effects during flare-ups or have stated that such comment was not possible without resort to mere speculation without explanation.  This was the same in the most recent VA examination reports in April 2018.
The Veteran has provided lay statements describing functional limitation during flare-ups, including in his September 2018 informal hearing presentation (IHP).  With regard to his back, the IHP notes that the Veteran stated, “My back hurts so bad at times, I cannot get out of bed. My wife rubs icy hot and I use a heating pad. It last 2 days at a time and often; I’m down for a week.”  Additionally, he stated, “When my back goes out, I just lay around and have no desire to get up because of the pain.”  Functional limitation was described as “I am unable to walk without my wife helping me.”  IHP at 2.
Regarding his knees, he stated, “I was unable to walk upstairs and downstairs.  My knee gives out when I stand for a long period.”  Id. He reported that his knees give out going down steps and that he cannot put weight on his knees.  Pain is bad when he walks long distances.  He further described flare-ups as causing his right knee to give out and productive of uncomfortable pain while the left knee was described as feels swollen.  Functional limitation was also noted as knee popping a lot upon walking and bending.
Therefore, taking into consideration these lay statements, upon remand, an examiner should estimate functional loss during a flare-up of each disability.  See Sharp, 29 Vet. App. at 34-36.  In light of the remand of the rating claims, the TDIU claim will also be remanded.
The matters are REMANDED for the following action:
Schedule the Veteran for a VA examination to ascertain the severity of his service-connected lumbar spine disability, and his left and right knee DJD disabilities.  
The examiner must discuss the Veteran’s current complaints and symptoms with the Veteran and document said in the examination report.  The claims file should also be reviewed by the examiner.  
The examiner should also estimate the functional loss that would occur during flares.
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A complete rationale should be provided for all opinions reached.  If such an opinion cannot be given without resort to mere speculation, the examiner should state why.
 
RYAN T. KESSEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. George