Citation Nr: 18152832 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 12-14 248 DATE: November 27, 2018 REMANDED 1. Entitlement to an initial evaluation greater than 10 percent disabling prior to September 10, 2012, and 20 percent thereafter for degenerative disc disease and strain of the lumbar spine is remanded. 2. Entitlement to an initial evaluation greater than 40 percent disabling for radiculopathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1975 to July 1976, December 14, 1990 to December 16, 1990, November 2004 to January 2005, February 2005 to May 2005, August 2005 to January 2006, January 2006 to June 2007, October 2007 to November 2008, and November 2008 to March 2010, with additional service in the Army Reserves, Air Force Reserves, and Air National Guard, to include periods of active and inactive duty for training. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Board remanded these claims for additional development. In October 2017, the Board again remanded these claims for additional development. Although the Board regrets further delay, remand is required for compliance with the Board’s prior directives from its October 2017 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The Board is obligated by law to ensure that the RO complies with its directives. Stegall, 11 Vet. App. at 271. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Id. Furthermore, in increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner’s failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Sharp, 29 Vet. App. at 33 (citing Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Although not binding on VA examiners, the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN’S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner fails to elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares, and then estimate the veteran’s functional loss, due to flares, based on all the evidence of record -including the veteran’s lay information- or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. The June 2018 VA examiner did not comply with the directives of the October 2017 Board remand. In pertinent part, the Board directed the examiner to describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. The Board directed the examiner to note additional limitations, of motion, during flares and following repetitive use. That is, if the Veteran described flare-ups of pain, the examiner was told to offer an opinion as to whether there would be additional limits on functional ability during flare-ups. And if so, “[a]ll losses of function due to problems such as pain should [have been] equated to additional degrees of limitation of flexion and extension beyond that shown clinically.” October 2017 Board remand (emphasis added). The examiner addressed that the Veteran reported flares that caused loss of function, to include missing work for six consecutive days. However, the examiner then stated that equivalence of functional loss to additional degrees of limitations of flexion and extension could not be provided without mere speculation, because the examiner was not seeing the Veteran during repetitive use over time or during a flare-up. The examiner’s opinion is thus inadequate. Accordingly, remand is required. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Obtain the Veteran’s service treatment records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the current severity of his service-connected degenerative disc disease and strain of the lumbar spine. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). In addition, the examiner must address the following: (a.) Test the range of motion in active motion, passive motion, weight-bearing, and non-weight-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. (b.) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups, following repetitive use over time, and following repetitive on examination due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. (c.) If the examiner cannot offer an opinion as to functional loss due to problems such as pain, equated to additional degrees of limitations of flexion and extension beyond that shown clinically, without resorting to speculation, he or she must give specific reasons that are not based on the absence of procurable information or on the examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. In doing so, the examiner must address the Veteran’s statements that during flares he cannot drive, get out of bed in the afternoon, and getting out of bed to use the bathroom was agony. 4. After any additional records are associated with the claims file, the Veteran must be afforded a VA examination to ascertain the current severity and manifestations of his radiculopathy of the right lower extremity and any additional nerve involvement caused by the service-connected lumbar spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the January 2016 VA nerve examination report, and the June 2018 VA nerve examination report, and consider the Veteran’s statements. The examiner should provide a reason for any inconsistencies between his or her examination report and any prior VA nerve examination reports. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). In addition, the examiner must address the following: (a.) Identify all nerve(s) affected by the service-connected lumbar spine disability. (b.) For any nerve(s) affected by the service-connected lumbar spine disability, determine and describe the degree of paralysis, neuritis, or neuralgia as mild, moderate, severe, or complete. (c.) For any nerve(s) affected by the service-connected lumbar spine disability, determine whether there are other pertinent physical findings, complications, conditions, signs and/or symptoms, to include corresponding musculoskeletal reduction(s) in range(s) of motion. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated regarding the issues of entitlement to higher initial evaluations, to include whether the following are warranted: 1) extra-schedular ratings for the service-connected disabilities under the provisions of 38 C.F.R. § 3.321; and 2) additional separate evaluations for the service-connected radiculopathy. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel