Citation Nr: 18158211 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 18-48 340 DATE: December 14, 2018 REMANDED Entitlement to a disability rating in excess of 20 percent for a right ankle disability with arthritis is remanded. Entitlement to an initial disability rating for degenerative arthritis of the lumbar spine in excess of 10 percent from January 7, 2009; in excess of 20 percent from December 7, 2012; and in excess of 10 percent from June 30, 2017 is remanded. Entitlement to an initial disability rating for right lower extremity radiculopathy in excess of 10 percent prior to June 30, 2017, and a compensable disability rating thereafter is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1960 to August 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2017 (back), August 2017 (ankle and TDIU), and September 2018 (radiculopathy) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Janesville, Wisconsin and Boise, Idaho, respectively. Jurisdiction currently resides with the RO in Boise, Idaho. 1. Entitlement to a disability rating in excess of 20 percent for a right ankle disability with arthritis is remanded. 2. Entitlement to an initial disability rating for degenerative arthritis of the lumbar spine in excess of 10 percent from January 7, 2009; in excess of 20 percent from December 7, 2012; and in excess of 10 percent from June 30, 2017 is remanded. The Veteran is seeking increased disability ratings for his service-connected right ankle disability with arthritis and degenerative arthritis of the lumbar spine. Specifically, the Veteran contends that his right ankle and lumbar spine disabilities are more severe than reflected by his currently assigned disability ratings. The Veteran was provided VA examinations for his right ankle and lumbar spine disabilities in June 2017. With regard to the right ankle, the Veteran reported experiencing flare-ups two to three times a week depending on his activity. The VA examiner indicated that the examination was not performed during a period of flare-up and as such, he was unable to say without resorting to mere speculation whether pain, weakness, fatigue, or incoordination significantly limited the functional ability of the Veteran’s right ankle with flare-up. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court clarified the responsibilities of a VA examiner and the Board when an examiner is asked to provide an opinion as to additional functional loss during flare-ups of musculoskeletal disability pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Case law and VA guidelines anticipate that examiners will offer flare-up opinions based on estimates derived from information procured from relevant sources, including lay (non-expert) statements. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. Sharp found a VA examination to be inadequate because the examiner, although acknowledging that the veteran was not then suffering from a flare-up of any of his conditions, failed to ascertain adequate information, such as frequency, duration, characteristics, severity, and functional loss, regarding the flare-ups by alternative means. As the Veteran reports suffering from flare-ups of his right ankle disability two to three times a week, the Board finds that remand is warranted for a VA examination that follows the guidelines of Sharp. With regard to the Veteran’s lumbar spine disability, the June 2017 VA examiner indicated that the Veteran did not report experiencing flare-ups of his back disability. As such, the portion of the examination related to flare-ups of the spine was deemed inapplicable and no information was provided. However, on the contrary, in an October 2018 statement, the Veteran reported experiencing flare-ups any time he was physically active, which limited his ability to bend or move. He rated the pain a 10 and would need to sit or lay down to relieve the pain and discomfort. The Veteran’s reports of limited movement during flare-ups is suggestive that his range of motion is further restricted during flare-ups. Therefore, the Board finds that remand is warranted for a VA examination of the spine that follows the guidelines of Sharp. The Board notes that remand of the Veteran’s right ankle and lumbar spine disabilities are also necessary in light of Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), which held that an adequate VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and with range-of-motion measurements of the opposite undamaged joint. The June 2017 VA examination reports for the Veteran’s right ankle and lumbar spine disabilities do not reflect joint testing for pain on non-weight-bearing, or on both active and passive motion. Therefore, on remand, VA examinations for the Veteran’s right ankle and lumbar spine disabilities must be compliant with the guidelines set forth in Correia, as well as Sharp. 3. Entitlement to an initial disability rating for right lower extremity radiculopathy in excess of 10 percent prior to June 30, 2017, and a compensable disability rating thereafter is remanded. The Veteran is seeking a disability rating in excess of 10 percent for his service-connected right lower extremity radiculopathy prior to June 30, 2017, and a compensable disability rating thereafter. Specifically, the Veteran contends that his right lower extremity radiculopathy is more severe than reflected by his currently assigned disability ratings. By way of history, the September 2018 rating decision granted service connection for right lower extremity radiculopathy associated with the Veteran’s service-connected lumbar spine disability. The RO granted a 10 percent disability rating from January 7, 2009, noting that the Veteran’s treatment records indicated he suffered from mild incomplete paralysis. Following June 30, 2017, the RO decreased the evaluation to a noncompensable disability rating due to the results of the June 2017 VA examination. In the June 2017 VA examination, the VA examiner noted that the Veteran reported back pain that radiated down the right leg to the knee. However, the examiner also noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. In light of the conflicting information contained in the June 2017 VA examination, remand is necessary so that the Veteran may be afforded a new VA examination that addresses the severity of his right lower extremity radiculopathy. 4. Entitlement to TDIU is remanded. In this instance, the Veteran’s disability ratings for his right ankle, lumbar spine, and right lower extremity radiculopathy may impact his evaluation for purposes of TDIU. As TDIU is dependent upon the degree of impairment from service-connected disabilities, it is inextricably intertwined with the increased rating claims being remanded. Remand of the inextricably intertwined TDIU claim is therefore required as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA medical examinations to assess the orthopedic manifestations of his right ankle disability with arthritis and degenerative arthritis of the lumbar spine. The Veteran’s electronic claims file must be made available for review prior to the examinations and the examination report should reflect that such review was accomplished. All testing deemed necessary to rate the ankle and lumbar spine disabilities under the criteria of the VA rating schedule must be conducted and the results reported in detail. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for both ankles and the spine. The examiner should comment as to the extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups, expressed as additional range of motion loss, if possible. 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 examiner should elicit from the Veteran a complete history of any flare-ups of his ankle and spine disabilities. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the Veteran’s disabilities. The examiner should describe the additional loss, in degrees, if possible. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. If the examiner is unable to do so, the examiner should indicate that all procurable data was considered (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examination was not performed during a period of flare-up. Additionally, the examiner should assess the limitations and impairment caused by the Veteran’s service-connected right ankle and lumbar spine disabilities on his ordinary activities, to include functional and occupational impairment, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. A rationale for all opinions must be provided. 2. Schedule the Veteran for an appropriate VA medical examination to assess the manifestations of his right lower extremity radiculopathy. The Veteran’s electronic claims file must be made available for review prior to the examination and the examination report should reflect that such review was accomplished. All testing deemed necessary to rate the disability under the criteria of the VA rating schedule must be conducted and the results reported in detail. The examiner should assess the limitations and impairment caused by the Veteran’s service-connected right lower extremity radiculopathy on his ordinary activities, to include functional and occupational impairment, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his attorney a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel