Citation Nr: 18151653 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 04-25 034 DATE: November 20, 2018 ORDER Entitlement to an effective date of March 17, 2012 for the award of service-connection for left upper extremity radiculopathy is granted. Entitlement to an effective date prior to May 7, 2012 for the award of service-connection for right upper extremity radiculopathy is denied. Entitlement to an initial rating of 30 percent, but no higher, from May 7, 2012 to January 11, 2013 and from August 1, 2017 for service-connected cervical spine disorder (excluding any period of convalescence) is granted, subject to the rules and regulations governing the award of monetary benefits. Entitlement to an initial rating in excess of 10 percent prior to May 7, 2012 and in excess of 60 percent from April 1, 2013 to July 31, 2017 for service-connected cervical spine disorder (excluding any period of convalescence) is denied. REMANDED Entitlement to a disability rating in excess of 10 percent prior to September 12, 2008, in excess of 30 percent from September 12, 2008 to August 31, 2015, and in excess of 10 percent therefrom for a right knee disability is remanded. Entitlement to a disability rating in excess of 10 percent prior to September 12, 2008, in excess of 30 percent from September 12, 2008 to August 31, 2015, and in excess of 10 percent therefrom for a left knee disability is remanded. Entitlement to a compensable rating for a right hip disability is remanded. Entitlement to a compensable rating for a left hip disability is remanded. Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) prior to September 12, 2008 is remanded. FINDINGS OF FACT 1. Left upper extremity radiculopathy was first diagnosed upon evaluation on March 17, 2012. 2. Right upper extremity radiculopathy was first diagnosed at the May 7, 2012 VA examination. 3. Prior to May 7, 2012, the Veterans cervical spine disorder has not resulted in limitation of flexion to 30 degrees or less, or a combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 4. From May 7, 2012 to January 11, 2013 and from August 1, 2017, the evidence is at least in equipoise as to whether the Veteran’s cervical spine disorder has resulted in limitation of flexion to less than 15 degrees. 5. From April 1, 2013 to August 1, 2017, the Veteran’s cervical spine disorder has not caused unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for an effective date of March 17, 2012 but no earlier, for the grant of service connection for left upper extremity radiculopathy are met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). 2. The criteria for an effective date prior to May 7, 2012, for the grant of service connection for right upper extremity radiculopathy are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.400. 3. Prior to May 7, 2012, the criteria for an initial rating in excess of 10 percent for service-connected cervical spine disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 4. From May 7, 2012 to January 11, 2013 and from August 1, 2017, the criteria for an initial 30 percent rating for service-connected cervical spine disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 5. From April 1, 2013 to August 1, 2017, the criteria for an initial rating in excess of 60 percent for service-connected cervical spine disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5267. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1983 to February 1988. The issues of entitlement to increased disability ratings for bilateral knee disabilities were denied by the Board in December 2007. Following the Veteran’s appeal of that decision, in a December 2008 Order, the Court of Appeals for Veterans Claims (Court) vacated and remanded these issues for further development. In September 2010, the Veteran appeared at a Central Office hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. In August 2016, the Board decided the issues of entitlement to increased disability ratings for bilateral knee and hip disabilities and remanded the issue of a TDIU for further development. The Veteran appealed this decision and, in an October 2017 Order, the Court vacated and remanded the issues of entitlement to increased disability ratings for bilateral knees and hips for further development and for referral for extraschedular consideration based on the collective impact of the Veteran’s service-connected disabilities. In spite of the Court’s instruction above with regard to referral for extraschedular consideration based on collective impact, the Board emphasizes that, on December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321 (b)(1), effective January 8, 2018, to clarify that an extraschedular rating is not available based on the combined effect of multiple service-connected disabilities. The provisions of this rule shall apply to all applications for benefits that are received by VA, or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit (Federal Circuit) on or after January 8, 2018. As the Veteran’s case on appeal here is pending before VA on or after January 8, 2018, this rule is applicable to this case. Accordingly, the Board finds that an extraschedular rating based on the collective impact of the Veteran’s service-connected disabilities is not for consideration, as an extraschedular rating based on multiple service connected disabilities is no longer a viable theory of entitlement in this appeal. In an August 2017 decision, the Board granted entitlement to a TDIU from September 12, 2008 and remanded the issue of entitlement to a TDIU prior to September 12, 2008 to include on an extraschedular basis. 1. Entitlement to an effective date prior to May 7, 2012 for the award of service connection for left upper extremity radiculopathy and right upper extremity radiculopathy. Generally, the effective date of an award based on an original claim, a claim reopened after a final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. In assigning effective dates for increases, except as provided in paragraph § 3.400(o)(2) and § 3.401(b), the effective date is date of receipt of claim or date entitlement arose, whichever is later. As an exception to this general rule, § 3.400(o)(2) provides that the effective date is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date; otherwise the effective date is the date of claim. The phrase “otherwise, date of receipt of claim” applies only if a factually ascertainable increase in disability occurred more than one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term “increase” as used in 38 U.S.C. 5110 and 38 C.F.R 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015, and do not apply to the effective date issue on appeal. Prior to the March 24, 2015 amendment, VA accepted both formal and informal claims. An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). The Veteran did not file a claim for the left and right upper extremity radiculopathy. Rather, service connection arose from the claim for an increased rating for the Veteran’s cervical spine disability. As service connection for the radiculopathy arose from the increased rating claim for the cervical spine, the date of claim for the radiculopathy is determined to be the date the claim for an increased rating for the cervical spine disability was received, which is September 12, 2008. See the September 2009 rating decision. The Veteran contends that his effective date for the radiculopathy should be in March 2012, when cervical spine radiculopathy was listed in a notice of disagreement. In a January 2014 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left and right upper extremity radiculopathy effective May 7, 2012, the date of the VA examination which first diagnosed bilateral upper extremity radiculopathy. Thereafter, in a March 2014 notice of disagreement, the Veteran contended that an earlier effective date for the grants of service connection was warranted. See March 2014 notice of disagreement. As noted above, the effective date is assigned based on the date of claim or the date entitlement arose, whichever is later. As to date entitlement arose for the radiculopathy of the upper extremities, at the May 7, 2012 VA spine examination, the examiner indicated that the Veteran has radicular symptoms for the bilateral upper extremities associated with his cervical spine disability. The RO found the date entitlement arose is May 7, 2012. The effective date is date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. In this case, the Board finds that for the right upper extremity radiculopathy, the date entitlement arose is May 7, 2012, the date that right upper extremity radiculopathy was diagnosed. The Board finds that the weight of the competent and credible evidence shows that the right upper extremity radiculopathy was not diagnosed prior to May 7, 2012. The record shows that a claim for an increase in the cervical spine disability was received September 12, 2008. The evidence of record does not show a diagnosis of right upper extremity radiculopathy prior to that date. Thus, the Board finds that May 7, 2012 is the appropriate effective date for the grant of service connection for right upper extremity radiculopathy secondary to the service-connected cervical spine disability. 38 C.F.R. § 3.400. The appeal is denied. The Board finds that for the left upper extremity radiculopathy, the date entitlement arose is March 17, 2012, the date that the left upper extremity radiculopathy was diagnosed. The record shows that the Veteran was hospitalized at VA for left arm and chest pain in February 2012. A February 22, 2012 VA Internal Medicine record indicates the Veteran had complaints of left arm/neck pain with complex pain history with known degenerative disc disease and presumed fibromyalgia; degenerative disc disease with possible radiculopathy is in the differential (C 5-7), questionable slipped disc after fall. The attending indicated that even if so, with no acute weakness or persistent numbness, no emergent surgery would be indicated, and at this point, they could offer a steroid burst for possible radiculopathy with a neck MRI to see if any disc changes since last time. A February 22, 2012 VA Internal Medicine record by another VA doctor indicates that the Veteran had left arm pain; he had a differential diagnosis of carpal tunnel/radiculopathy, musculoskeletal, cardiac ischemia/coronary vasospasm. The VA doctor noted that given the reproducibility of the symptoms with the physical exam, it was felt that this likely was neuropathic in etiology. The evidence shows a diagnosis of left upper extremity radiculopathy on March 17, 2012. A March 17, 2012 VA Pain Clinic record indicates that the assessment was cervicalgia and radiculopathy, likely progression of left sided foraminal stenosis as seen in prior MRI, which correlates with history and physical of distribution. The Board finds that for the left upper extremity radiculopathy, the date entitlement arose is March 17, 2012, the date that the left upper extremity radiculopathy was diagnosed. The Board finds that the weight of the evidence of record does not show a diagnosis of left upper extremity radiculopathy prior to that date. Thus, the Board finds that March 17, 2012 is the appropriate effective date for the grant of service connection for left upper extremity radiculopathy secondary to the service-connected cervical spine disability. 38 C.F.R. § 3.400. The appeal is granted to that extent. 2. Entitlement to an initial rating in excess of 10 percent prior to January 11, 2013, in excess of 60 percent from April 1, 2013 to August 1, 2017, and in excess of 20 percent therefrom for a cervical spine disorder. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran’s service-connected cervical spine disorder is currently evaluated under Diagnostic Code 5243 for intervertebral disc syndrome. VA regulations provide spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever would result in a higher rating. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 10 percent rating is warranted where there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for flexion of the cervical spine between 15 and 30 degrees, or combined range of motion of the cervical spine not greater than 170 degrees, or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based (IVDS) on Incapacitating Episodes, a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during a 12 month period; a 40 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during a 12 month period; and a 60 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks during a 12 month period. 38 C.F.R. § 4.71a. The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In the September 2009 rating decision, the Veteran was assigned a 10 percent rating effective September 12, 2008, based primarily on the August 2009 VA examination. In the January 2014 rating decision, for his cervical spine disorder, he was subsequently assigned a 100 percent rating effective January 11, 2013, based on surgical treatment necessitating convalescence, and a 60 percent rating effective April 1, 2013, based on the November 2013 VA examination. In the May 2017 rating decision, the Veteran’s cervical spine disorder was decreased from 60 percent to 20 percent effective August 1, 2017 based on the August 2015 VA examination findings. He asserts that higher ratings are warranted. Nevertheless, after a thorough review of the record and the legal criteria above, the Board finds that the evidence of record supports the assignment of higher initial 30 percent ratings from May 7, 2012 to January 10, 2013 and from August 1, 2017. In the August 2009 qualified VA examination, the examiner diagnosed degenerative joint and degenerative disc disease of the cervical spine. There was no evidence of radiation of pain, spasms, or tenderness. There was significant muscle guarding. However, spinal contour was preserved. Range of motion testing revealed limitation of motion due to pain, with flexion at 35 degrees, extension at 35 degrees, right and left lateral flexion at 30 degrees, and right and left lateral rotation at 60 degrees. There was no additional loss of range of motion after repetitive use testing. On May 7, 2012, the Veteran underwent a VA examination to evaluate his cervical spine disorder. The examiner diagnosed degenerative disc disease of the cervical spine. Range of motion testing showed limitation of flexion at 40 degrees, with objective evidence of pain at 0 degrees; extension at 20 degrees, with objective evidence of pain at 0 degrees; right lateral flexion at 30 degrees, with objective evidence of pain at 0 degrees; left lateral flexion at 15 degrees, with objective evidence of pain at 0 degrees; right lateral rotation at 45 degrees, with objective evidence of pain at 0 degrees; and left lateral rotation, with objective evidence of pain at 0 degrees. The Veteran was unable to perform repetitive use testing. Functional loss was caused by less movement than normal and pain on movement. The Veteran also demonstrated tenderness/pain on palpation of the joint and decreased sensation. However, there was no demonstrated IVDS. In the November 2013 VA examination, the examiner diagnosed cervical spine degenerative disc disease status post surgery with bilateral IVDS. Range of motion testing showed limitation of flexion at 30 degrees, extension at 10 degrees, right lateral flexion at 10 degrees, left lateral flexion at 20 degrees, right lateral rotation at 20 degrees, and left lateral rotation at 35 degrees. The Veteran was unable to perform repetitive use testing because of pain. The Veteran also demonstrated IVDS, with incapacitating episodes over the past 12 months lasting at least 6 weeks. The Veteran underwent an August 2014 VA examination to evaluate his cervical spine disorder. However, the Veteran’s demonstrated symptomatology was not more severe than as indicated in the previous November 2013 and subsequent October 2014 VA examinations. In October 2014, the Veteran underwent a VA examination to evaluate his cervical spine disorder. The examiner diagnosed intervertebral disc degeneration and cervical disc disorder with radiculopathy of the cervical spine. Range of motion testing revealed limitation of flexion to 15 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 15 degrees. Such ranges represent limitation of motion due to pain and after repetitive use testing. The Veteran also demonstrated decreased sensation and radiculopathy of the upper extremities. However, there was no ankylosis. The Veteran also demonstrated IVDS with incapacitating episodes in the last 12 months having a total duration of at least two weeks but less than four weeks. In the August 2015 VA examination, the examiner diagnosed degenerative arthritis of the cervical spine. The Veteran reported flare-ups that cause constant pain. Range of motion testing revealed limitation of flexion to 30 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 35 degrees. The Veteran was unable to perform repetitive use testing because of pain. The Veteran demonstrated IVDS with no incapacitating episodes. The examiner indicated that range of motion loss during pain on use or during flare-ups was approximately 100 percent. Based on the foregoing evidence, the criteria for a higher initial 30 percent rating, but no higher, are met for the periods from May 7, 2012 to January 11, 2013 and from August 1, 2017. Significantly, from May 7, 2012 to January 11, 2013 (the date of assignment of a temporary total rating for convalescence for cervical spine surgery) the evidence indicates that pain was exhibited at 0 degrees of flexion. Additionally, from August 1, 2017 the evidence indicates that, on flare-ups, the Veteran’s range of motion loss is 100 percent. In light of this evidence and after affording the Veteran the benefit-of-the doubt, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s limitation of flexion is less than 15 degrees (i.e., the criteria for a 30 percent rating) for these periods. Accordingly, an initial 30 percent rating is assigned for the periods from May 7, 2012 to January 11, 2013 and from August 1, 2017. A higher rating is not available for these periods, however, because the Veteran has not demonstrated ankylosis of the cervical spine and/or has not demonstrated IVDS with incapacitating episodes. For the period prior to May 7, 2012, an initial rating in excess of 10 percent is not warranted. In pertinent part, during this period, the Veteran’s cervical spine disorder resulted in limitation of flexion to 35 degrees, combined range of motion to 250 degrees, and muscle guarding without abnormal spinal contour and there was no evidence of IVDS. See August 2009 VA Examination report. A higher 20 percent rating requires flexion between 15 and 30 degrees, combined range of motion less than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or IVDS with incapacitating episodes. Accordingly, prior to May 7, 2012, the Veteran’s claim for a higher rating for a cervical spine disorder is denied. For the period from April 1, 2013 to August 1, 2017, an initial rating in excess of 60 percent is not warranted. Notably, a 60 percent rating is the highest schedular rating available for the cervical spine, absent a showing of ankylosis of the entire spine. Accordingly, from April 1, 2013 to August 1, 2017, the Veteran’s claim for a higher rating for a cervical spine disorder is denied. The Board acknowledges that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has also considered the United States Court of Appeals for Veterans’ Claims (Court’s) holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), addressing 38 C.F.R. § 4.40, which states that a VA examiner must “express an opinion on whether pain could significantly limit functional ability” and the examiner’s determination in such regard “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.” In light of these requirements, the Board has carefully considered the VA examinations of record and whether they complied with Correia and Sharp. Significantly, however, to the extent that the examination findings of record relative to the cervical spine are not completely in compliance with Correia and/or Sharp, the Board finds that remand for additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In that regard, the Board emphasizes that current examination findings would not be useful in adjudicating the rating assigned for the periods prior to August 1, 2017, and any retrospective opinion would merely impose an additional burden on VA with no benefit flowing to the Veteran, as VA would be asking an examiner to speculate as to the pre- August 1, 2017 ranges of motion. Moreover, for any period following May 7, 2012, the Veteran is in receipt of at least a 30 percent rating. Ratings in excess of 30 percent for the cervical spine do not involve assessment of range of motion, and a remand to obtain a current examination that complies with Correia and Sharp would also not be useful. The Board acknowledges that the most recent VA examination regarding the Veteran’s cervical spine disorder was from August 2015. Although, this examination is over 3 years old, neither the Veteran nor his attorney has asserted that the Veteran’s cervical spine disorder has worsened since the prior examination. The Board emphasizes that the passage of time alone, without an allegation of worsening since the last VA examination, does not warrant a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Accordingly, the Board finds that the current evidence of record is adequate for adjudication purposes. Finally, with regard to objective neurological abnormalities associated with the Veteran’s cervical spine disability, the Board notes that service connection for cervical radiculopathy of the right and left upper extremities associated with his cervical spine disability is in effect. Separate 20 percent disability ratings are assigned to each upper extremity for mild incomplete paralysis of the upper radicular group under Diagnostic Code 8510. After a review of the evidence, the Board finds that the criteria for moderate or severe incomplete paralysis has not been met under Diagnostic Code 8510. The medical evidence shows findings of mild impairment, not moderate or severe impairment. See the August 2015 VA examination findings. There are no findings of complete paralysis of the upper radicular group with loss of all shoulder and elbow movement. For these reasons, the Board concludes that the disability picture more nearly approximates mild incomplete paralysis of the upper radicular group of the right and left upper extremities and a 20 percent rating and no higher under Diagnostic Code 8510 is warranted for each upper extremity. REASONS FOR REMAND 1. Entitlement to higher ratings for bilateral knee and hip disabilities are remanded. The Board regrets the delay involved in remanding these claims again; however, in the February 2017 remand, the Board requested that the Veteran be afforded a VA examination to assess his bilateral knee and hip disabilities. Specifically, the Board instructed that the VA examiner must estimate any additional functional loss caused by the Veteran’s flare-ups and, if unable to do so, the examiner should ascertain by alternative means (including the Veteran’s testimony) the following information regarding the Veteran’s flare-ups: the frequency, duration, characteristics, severity, or functional loss. The Board instructed that this should be done prior to concluding that an estimate cannot be made without resorting to mere speculation. If an estimate cannot be made, the examiner should provide an explanation. (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)). Nevertheless, the Board notes that, while the Veteran was provided a July 2018 VA examination for his bilateral knees and hips, the VA examiner did not substantially comply with the previous remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In pertinent part, with regard to the Veteran’s bilateral knee and hip disabilities, the VA examiner indicated that she was unable to say without mere speculation whether pain, weakness, fatiguability or incoordination significantly limited functional ability during flare-ups. She indicated further that it was not possible to estimate, without resorting to mere speculation, the loss of range of motion, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Such explanation, however, falls short of that requested by the Board in the February 2017 remand. Chiefly, the VA examiner did not otherwise discuss whether or not information elicited regarding flare-ups, such as frequency, duration, characteristics, severity, or functional loss, would aid in making an estimate of the loss of range of motion. Accordingly, remand is required for a new VA examination consistent with the directives herein. The Board also notes that in an August 2017 letter, the Veteran’s representative indicated that the Veteran had private treatment/surgery regarding his knee disabilities and requested assistance in obtaining these records. See August 2017 Statement in Support of Claim. Nevertheless, the Agency of Original Jurisdiction (AOJ) has not otherwise attempted to obtain these records. Accordingly, on remand, the AOJ should attempt to acquire these records. 2. Entitlement to a TDIU prior to September 12, 2008 is remanded. In August 2017, the Board remanded this issue and instructed the RO to refer the Veteran’s claim of entitlement to a TDIU prior to September 12, 2008, on an extraschedular basis, to the Director of Compensation Service. To date, this has not occurred. See October 2017 Supplemental Statement of the Case; see also Stegall, 11 Vet. App. at 268. Moreover, consideration of entitlement to a TDIU prior to September 12, 2008 is dependent upon the impact of the Veteran’s service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran’s increased rating claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, remand of the inextricably intertwined TDIU claim is also required. The matters are REMANDED for the following actions: 1. Obtain all outstanding VA treatment and private treatment records. Specifically, attempt to obtain the private treatment records requested in the August 2017 Statement in Support of Claim. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran and his representative must be notified in accordance with 38 C.F.R. § 3.159(e). 2. Refer the Veteran’s claim of entitlement to a TDIU prior to September 12, 2008, on an extraschedular basis, to the Director of Compensation Service. 3. Following the record development above, schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and current severity of his bilateral knee and hip disabilities. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to fully describe the current severity of each disability including all objective manifestations and must comply with the following: a) The examiner should address any weakened movement, excess fatigability with use, incoordination, and painful motion. b) The examiner must address range of motion loss specifically due to pain and any functional loss during flare-ups or when the joint is used repeatedly over a period of time. The examiner is to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. The examiner should to the extent possible provide an opinion estimating any additional degrees of limited range of motion caused by functional loss during flare-ups as well as after repeated use over time. If the examiner is unable to do so, then, before concluding that such an estimate cannot be made without resorting to mere speculation, the examiner should ascertain by alternative means, including the Veteran’s testimony, the following information regarding flare-ups: frequency, duration, characteristics, severity, and/or functional loss. c) If it is still not feasible to provide an estimate as to the degrees in which there is an additional loss in range of motion during flare-ups or repeated use over time or any range of motion testing, then the examiner must provide an adequate explanation as to why. d) Testing of the range of motion must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges, if possible, obtain ranges of motion of the opposite undamaged joint. If such are not applicable, the examiner should state such along with an explanation. e) The examiner should also comment on the functional impairment caused by the Veteran’s service-connected bilateral knee and hip disabilities. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. CAROLYN L. KRASINSKI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel