Citation Nr: 18153172 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-59 472 DATE: November 27, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for lumbar degenerative disc disease (DDD) with degenerative arthritis is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran had active military service in the Army from January 2011 to May 2011 and from June 2012 to May 2013. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In December 2016, the Veteran raised the issue of an increased rating for his left knee. See December 2016 Notice of Disagreement (NOD). However, no action has been taken by the Agency of Original Jurisdiction (AOJ). Therefore, the Board refers the issue to the AOJ for appropriate action. 1. Entitlement to an initial rating in excess of 10 percent for lumbar degenerative disc disease (DDD) with degenerative arthritis is remanded. 2. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. The Board observes that the RO has not yet issued a Supplemental Statement of the Case (SSOC) in this matter to reflect additions to the evidence considered in the October 2016 SOC. Therefore, a remand for the issuance of an SSOC is necessary. See 38 C.F.R. § 19.31 (AOJ must furnish the Veteran and his representative an SSOC if the AOJ receives additional pertinent evidence after an SOC or the most recent SSOC has been issued and before the appeal is certified to the Board). The Veteran was last afforded a VA examination for her radiculopathy of the right lower extremity and DDD of the lumbar spine in November 2015. Since then, the Veteran had diskectomy surgery on her back. See December 2015 Third Party Correspondence. Also, the Veteran reported that due to the pain in her back and right leg, she had difficulty walking and sitting for long periods of time. She believed that her problems continued to get worse. See December 2016 VA Form 9. Thus, the Board concludes that the Veteran should be afforded new VA examinations to determine the nature and severity of her DDD of the lumbar spine and right lower extremity radiculopathy. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Further, on the November 2015 VA examination for the back, the VA examiner reported that he could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time without mere speculation because the Veteran was not being examined after repetitive use over time. The Board notes that a 2017 Court decision addresses what constitutes an adequate explanation for an examiner’s inability to estimate range of motion loss in terms of degrees during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Here, the November 2015 VA examiner did not ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding additional functional loss over time by alternative means. Therefore, on remand, the VA examiner must also elicit from the Veteran information regarding severity, frequency, duration, or functional loss that occurs after repetitive use over time. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment or private records and associate with the claims file. 2. After the above development has been completed, schedule the Veteran for VA examinations to determine the current nature and severity of her right lower extremity radiculopathy and DDD of the lumbar spine. The examinations should include all tests and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to those disabilities. The claims file must be made available to the examiner for review. The VA examiner should then address the following: (a.) For the back-the examiner is requested to test the range of motion of the back in active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable). If the examiner is unable to conduct the required testing, or concludes such testing is not necessary, he or she should clearly explain why that is so. (b.) For the back- if the examination does not take place during a flare-up, the examiner should obtain from the Veteran information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner must express an opinion as to whether or not the Veteran’s functional ability is significantly limited during flare-ups, and that determination should, if feasible, be portrayed in terms of the degree of additional loss of range of motion during flare-ups. (c.) For the back-with regard to repetitive use over a period of time, if the Veteran is not being examined after repetitive use over a period of time, the examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from repetitive use over a period of time. The examiner must express an opinion as to whether or not the Veteran’s functional ability is significantly limited after repetitive use over a period of time, and that determination should, if feasible, be portrayed in terms of the degree of additional loss of range of motion. (d.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in the medical community at large and not those of the particular examiner. (e.) The AOJ should readjudicate the claims with consideration of any pertinent evidence added to the record since the issuance of the October 2016 SOC. Then, if the benefits sought on appeal remain denied, the Veteran should be furnished with an SSOC on the issues remaining on appeal. The Veteran should be afforded an opportunity to respond before the record is returned to the Board for further review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel