Citation Nr: 18158388 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-57 289 DATE: December 14, 2018 REMANDED Entitlement to an initial compensable rating for a lumbar disability prior to March 3, 2016 and an initial rating greater than 20 percent beginning September 1, 2017 is remanded. Entitlement to an initial compensable rating for a left knee disability is remanded. Entitlement to an initial compensable rating for a right knee disability is remanded. Entitlement to an initial compensable rating for a skin disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2011 to April 2014. This appeal to the Board of Veterans’ Appeals (Board) is from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). During the appeal, a June 2016 rating decision granted a temporary total rating based on surgical treatment necessitating convalescence for the lumbar disability that was effective March 3, 2016 and then extended through August 31, 2017. Thereafter, a 20 percent rating was assigned, effective September 1, 2017. A temporary total rating based on surgical treatment necessitating convalescence for right knee surgery was granted, effective October 20, 2016. See May 2017 Rating Decision. 1. Entitlement to an initial compensable rating for a lumbar disability prior to March 3, 2016 and an initial rating greater than 20 percent beginning September 1, 2017 is remanded. The record indicates that Veteran may have some incontinence associated with his lumbar surgery. See May 2017 and November 2017 CAPRI records. Since incontinence is contemplated the rating criteria for spine disabilities, an examination is needed to determine if there is an etiological relationship between the incontinence and the surgery and, if so, determine the severity of the symptoms. All outstanding treatment records from Michigan Head & Spine Institute should be obtained and added to the file. 2. Entitlement to an initial compensable rating for a left knee disability is remanded. A December 2017 VA treatment record indicates the Veteran’s left knee disability is treated by a first-choice outside provider. See June 2017 CAPRI records. These records should be associated with the file. The Veteran has not had a VA examination for his left knee disability since April 2013. Since the Veteran will be scheduled for a VA examination for the right knee, the left knee will be evaluated as well. 3. Entitlement to an initial compensable rating for a right knee disability is remanded. The final page of the DBQ for the right knee appears to be missing, since there is no remarks section, signature, or date for this report. See January 2017 Other. It is unclear if any pertinent information is on the final page; therefore, the entire report should be associated with the Veteran’s file. The Veteran right knee disability was given a temporary total rating effective October 20, 2016, the date of the operative report. However, the RO provided conflicting information as to when this rating ceased and the initial zero percent rating resumed. The May 2017 rating decision and notification letter stated that the noncompensable rating resumed May 1, 2017, the first day of the month following the six-month temporary total rating, but the associated rating decision code sheet indicates the noncompensable rating resumed December 1, 2016. The RO must clarify which is the correct date. Regardless of which date is correct, the Veteran has not had a VA examination of the right knee since the temporary total rating ended. Furthermore, since there is evidence showing complaints of instability, a current examination is needed to ascertain the severity of the disability. See August 2017 CAPRI records. VA treatment records since August 2017 should be associated with the claims file. 4. Entitlement to an initial compensable rating for a skin disability is remanded. The Veteran has not had a VA examination for his skin disability since April 2013. VA treatment records in November 2017 indicate his skin disability was active and that it was more symptomatic during the cold months when he wore boots. Therefore, he should be scheduled for a VA examination during the winter months. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records since September 2017. 2. Ask the Veteran to complete a VA Form 21-4142 for Michigan Head & Spine Institute, the first-choice non-VA medical provider, and any other non-VA provider who has treated him for his lumbar, skin, or bilateral knee disabilities. Make two requests for the authorized records from each physician or facility, unless it is clear after the first request that a second request would be futile. Additionally, ask the Veteran to provide the complete copy of a knee and lower leg conditions DBQ that was submitted by his representative on January 31, 2017. This DBQ was initially submitted along with records from Orthopedic Surgical Institute, including an October 2016 right knee surgery report. 3. After completion of the above development, schedule the Veteran for a VA examination to determine the severity of his lumbar disability. The claims file should be made available to the clinician to review. A complete history should be elicited from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The following should be included in the report: a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing and non-weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. b) The examiner should offer opinions with respect to the additional limitation of motion during flare-ups and repeated use over time based on estimates derived from information procured from relevant sources, including the Veteran’s lay statements. It is insufficient to conclude that the requested opinions cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up or after repeated use over time. c) The examiner should also address whether there is a difference in active range of motion versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. d) The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, and functional loss manifestations related to flare-ups and repeated use over time, to include whether there have been any changes since the last examination. e) If the examiner is unable to render the requested opinions without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. f) If the disability includes intervertebral disc syndrome, the examiner should also comment upon the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician). g) Opine whether the Veteran has bowel or bladder impairment that is at least as likely as not (50 percent or greater probability) related to the back disability to include his back surgery. If so, comment on the severity based on objective and subjective findings. 4. After development #1 and #2 are completed, schedule the Veteran for a VA examination to determine the severity of his bilateral knee disability. The claims file should be made available to the clinician to review. A complete history should be elicited from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The following should be included in the report for each knee: a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing and non-weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. b) The examiner should offer opinions with respect to the additional limitation of motion during flare-ups and repeated use over time based on estimates derived from information procured from relevant sources, including the Veteran’s lay statements. It is insufficient to conclude that the requested opinions cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up or after repeated use over time. c) The examiner should also address whether there is a difference in active range of motion versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. d) The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, and functional loss manifestations related to flare-ups and repeated use over time, to include whether there have been any changes since the last examination. e) If the examiner is unable to render the requested opinions without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. (Continued on the next page)   5. After development #1 and #2 are completed, schedule the Veteran for a skin VA examination during one of the winter months, which is when a flare-up is most likely to occur, to ascertain the severity of his skin disability. If it is not possible to schedule the Veteran for a VA examination during a period of flare-up, the examiner should document the Veteran’s symptoms based on his description of symptoms during a period of flare-up. The claims file should be made available to the clinician to review. A complete history should be elicited from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst