Citation Nr: 18151804 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 17-31 594 DATE: November 20, 2018 REMANDED Entitlement to increased rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to an initial rating higher than 10 percent for a right lower extremity radiculopathy is remanded. Entitlement to an initial rating higher than 10 percent for a left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1962 to March 1966. These issues are on appeal from a November 2015 rating decision. The Board finds that a remand is necessary to ensure the Veteran is afforded the necessary due process as well as to provide him with an adequate VA examination in connection with his claim. Procedural History: In a May 1968 rating decision, the RO granted service connection for a lumbosacral strain with lumbosacral and sacro-iliac arthritis, and assigned it a noncompensable rating under Diagnostic Code 5295. Thereafter, in February 2002, the Veteran filed a claim for increased rating, and in an August 2002 rating decision, the RO increased the Veteran’s back disability rating to 20 percent, effective February 7, 2002 under Diagnostic Codes 5295-5010. Subsequently, in June 2015, the Veteran filed an additional claim for increased rating for a back disability. In a November 2015 rating decision, the RO granted service connection for degenerative disk disease, and rated that condition along with the previously granted lumbosacral strain under Diagnostic Code 5242. A 10 percent evaluation for the DDD and strain was assigned and the RO also granted separate 10 percent ratings for right and left lower extremity radiculopathy as per the note in the General Formula. Significantly, after the 2002 rating decision, the regulations used to evaluate diseases and injuries of the spine have changed twice, effective on September 23, 2002, and on September 26, 2003. See 38 C.F.R. § 4.71a (Diagnostic Codes 5285, 5286, 5287, 5288, 5289, 5290, 5291, 5292, 5293, 5294, 5295) (2002); 67 Fed. Reg. 54345 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a (Diagnostic Code 5293) (2003); 68 Fed. Reg. 51454-58 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a (Diagnostic Codes 5235, 5236, 5237, 5238, 5239, 5240, 5241, 5242, 5243)(2004). Thus, the RO in the 2015 rating decision recharacterized the condition and utilized the revised diagnostic code criteria. While the rating appears at first to reflect a reduction, the overall rating of the back and radiculopathy as directed under the General Rating Formula resulted in a higher 30 percent evaluation. Thus the provisions of 38 C.F.R. §3.105 do not apply and the issue is simply one of entitlement to increased ratings. Adequacy of the October 2015 VA Examination In connection with his claim for increase, the Veteran underwent a VA examination for his back disability in October 2015. The examiner indicated that the Veteran’s claims file was not reviewed. The examiner confirmed diagnoses of lumbar strain, arthritis of the lumbar spine, interval disc syndrome, and bilateral 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, fatigue, and lack of endurance 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 the “claimant did not demonstrate theoretical loss of ROM.” The Board finds this statement unclear. In any event, 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). Additionally, in his June 2017 substantive appeal, the Veteran reported worsening of his symptoms, to include incapacitating episodes requiring bedrest and noted that his nerve pain was worse. Therefore, a new examination must be obtained before the claim can be decided on the merits. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records since March 2017 are associated with the claims file. 2. Provide the Veteran with a VA examination to identify the severity of his back disability. 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 throughout the pendency of the appeal from June 2015. 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. A complete rationale should be provided. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel