Citation Nr: 18156190 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 09-16 411 DATE: December 7, 2018 REMANDED 1. Entitlement to an initial rating higher than 20 percent for degenerative arthritis of the lumbar spine prior to June 25, 2013 is remanded. 2. Entitlement to an initial rating higher than 40 percent for degenerative arthritis of the lumbar spine since June 25, 2013 is remanded. 3. Entitlement to an initial rating higher than 10 percent for radiculopathy of the right lower extremity prior to June 25, 2013 is remanded. 4. Entitlement to an initial rating higher than 20 percent for radiculopathy of the right lower extremity since June 25, 2013 is remanded. 5. Entitlement to an initial rating higher than 10 percent for radiculopathy of the left lower extremity prior to June 25, 2013 is remanded. 6. Entitlement to an initial rating higher than 20 percent for radiculopathy of the left lower extremity since June 25, 2013 is remanded. 7. Entitlement to an effective date earlier than February 19, 2008, for the grant of service connection for degenerative arthritis of the lumbar spine is remanded. 8. Entitlement to an effective date earlier than June 25, 2013 for the grant of individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Air Force from March 1979 to May 1992. The Veteran appeals the denial of an initial rating higher than 20 percent for degenerative arthritis of the lumbar spine prior to June 25, 2013 and a rating higher 40 percent thereafter, and an initial rating higher than 10 percent for radiculopathy of the right and left lower extremity prior to June 25, 2013, and higher than 20 percent thereafter. He also appeals the denial of an effective date earlier than February 19, 2008, for the grant of service connection for degenerative arthritis of the lumbar spine. In the Board remand of October 2017, the RO was instructed to request and obtain any service treatment records pertaining to treatment for a back injury at Langley AFB from 1986 to 1992. In October 2018, the RO informed the Veteran of its efforts to obtain the outstanding records. The record shows that the RO has submitted several requests for records from differing sources to include the Langley Air Force Base and the USAF Hospital Langley Emergency Care in Hampton, VA. In August 2018, they sent out a records request to the Langley Air Force Base Medical Center in Langley, VA. It was requested that a negative response be returned if no records were available. To date, no records nor a negative reply has been associated with the record regarding this request. On remand, another attempt should be made to obtain a response to the records inquiry. Furthermore, in relation to his claims, the Veteran was last examined for VA purposes in June 2018. It is noted, however, that the VA examiner was unable to determine whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or during flares. The examiner found that determining the extent of motion loss during flares or repeated use required resort to speculation because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Such a finding, however, does not comply with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or repeated use over time will be considered inadequate. Id. Given the inadequacies of the June 2018 VA examination report, the Board has no option but to again remand the appeal for further development. See Stegall v. West, 11 Vet. App. 269, 271 (1998). Lastly, in the October 2017 Board remand it was noted that in an April 2016 rating decision the Veteran was granted TDIU effective June 25, 2013 and that in April 2017 he expressed disagreement with the effective date assigned. As such, the Board found that a remand was necessary for the issuance of a statement of the case and to give the Veteran an opportunity to perfect an appeal of such issue by submitting a timely substantive appeal. Manlincon v. West, 12 Vet. App. 238 (1999). The Board observes that the Veteran has identified his lumbar spine disability with radiculopathy as contributing to his unemployability, and that he has been unemployed since 2008. See VA Form 8940 (Veteran’s Application for Increased Compensation Based on Unemployability), Section 7, received June 2013. The lumbar spine disability on appeal involves an initial rating for an original claim filed in February 2008. Thus, the TDIU claim may be considered as part of the appeal for the initial rating for lumbar spine disability pursuant to a recent Court decision by the United States Court of Appeals for Veterans Claims in Harper v. Wilkie, No 16-3519 (December 6, 2018). The matters are REMANDED for the following action: 1. The RO should contact the Langley Air Force Base Medical Center in Langley VA and request any documents pertaining to treatment for a back injury at Langley AFB from 1986 to 1992 for the Veteran. These documents should then be associated with the Veteran’s VA electronic claims file. If no such records can be found, or if they have been destroyed, confirmation of this should be documented in the record. 2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected lumbar strain. Access to the electronic claims file must be made available to the examiner for review. In accordance with the latest worksheets for rating the lumbar spine, the examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints and the nature and extent of his disability. The examiner should specifically determine whether the Veteran manifests unfavorable ankylosis of the entire thoracolumbar spine, and address the symptomatology and manifestations resulting from the radiculopathy of the right and left lower extremity, and any other neurological disabilities associated with his lumbar spine disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The degree at which pain begins must be documented. 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. The VA examiner should provide a complete rationale for any opinions provided. (continued on the next page) 3. Thereafter, readjudicate the claims. With respect to the claim of entitlement to TDIU, the RO should consider the appeal period extending to the date of claim of the award of service connection for lumbar spine disability. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and allow an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S. Willie