Citation Nr: 18158568 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 10-32 961 DATE: December 18, 2018 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, post-operative, with scar is remanded. Entitlement to initial rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1986 to July 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Board remanded the case for additional development, and in September 2017, denied the claims on appeal. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted the Veteran’s and the Secretary of VA’s (the parties) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s September 2017 decision for action consistent with the JMPR. In September 2017, the Board also remanded the issue of entitlement to a total disability rating based upon individual employability due to service-connected disabilities (TDIU) for additional development. Such issue is still being developed by the Agency of Original Jurisdiction (AOJ) and it has not been recertified to the Board. Therefore, the Board declines jurisdiction of such issue at this time. The Board further notes that additional evidence, to include updated VA treatment records and VA examinations, was associated with the record since the issuance of the March 2017 supplemental statement of the case that addressed the current issues on appeal. However, as the Veteran’s claims are being remanded, the AOJ will have an opportunity to review the newly received evidence in connection with the readjudication of such matters. 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, post-operative, with scar. In the May 2018 JMPR, the parties found that the Board in the September 2017 decision erred by failing to set forth an adequate statement or reasons or bases that addressed the Veteran’s functional impairment of the back due to flare-ups and whether such would entitle him to an increased rating for such disability. Specifically, in the aforementioned decision, the Board noted the Veteran’s complaints of low lumbar back pain and limited motion, but found that, “even accounting for any limitations of his range of motion due to pain, the Veteran’s range of motion still exceeds that which is required for a [higher] rating.” In this regard, the Board stated that “[t]here is no showing of any other functional impairment which would warrant a higher rating for these complaints of pain.” However, the parties noted that a November 2008 VA examination reflected that the Veteran’s flexion was limited to 50 degrees with pain at 30 degrees; however, the Board did not provide any analysis regarding whether such resulted in functional loss that would warrant a higher rating under 38 C.F.R § 4.71a by limiting his ability to “perform the normal working movements of the body with normal excursion, strength, speed[, or] endurance.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); 38 C.F.R. § 4.40. Furthermore, the parties noted that, during an April 2010 VA examination, the Veteran reported that, during flare-ups, he experienced loss of range of motion and, during the December 2016 VA examination, he reported that flare-ups caused severe back spasms that resulted in the inability to ambulate. However, the Board did not address such relevant evidence when finding that the Veteran’s functional impairment due to flare-ups did not entitle him to a higher rating. In this regard, the Board observes that such examinations do not comply with the Court’s holding regarding flare-ups in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Further, such examinations, as well as a September 2015 VA examination, do not comply with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Consequently, a remand is necessary in order to afford the Veteran a new VA examination that addresses the nature and severity of his back disability in accordance with the Court’s guidance. In determining that such development is necessary, the Board observes that the Veteran was afforded another VA examination for his back disability in April 2018 connection with his TDIU claim. However, at such time, the examiner was unable to perform any range of motion testing due to severe back pain. However, he endorsed flare-ups as severe pain that makes it hard to move around, restricting him to a recliner. The examiner opined that it was not possible to determine any additional function loss due to flare-ups or after repeated use without observing function under those conditions. However, as such opinion does not comply with the Court’s holding in Sharp, supra, a remand for a new VA examination is necessary. 2. Entitlement to initial rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity. In the May 2018 JMPR, the parties found that the Board in the September 2017 decision erred by failing to set forth an adequate statement or reasons or bases for the finding that the Veteran’s sciatic radiculopathy of the left lower extremity was wholly sensory. In this regard, the parties noted that the December 2016 VA examination reflected that the Veteran had reduced muscle strength and decreased reflexes in his left lower extremity, in addition to decreased sensation. However, the Board finds that an adjudication of such issue would be premature as the examination ordered in connection with the Veteran’s claim for an increased rating for his back disability will also address the severity of his sciatic radiculopathy of the left lower extremity. Consequently, adjudication of such issue must be deferred pending the completion of the ordered development. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected degenerative disc disease of the lumbar spine, post-operative, with scar. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests and studies should be undertaken. If possible, such examinations should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s back disability. (B) The examiner should record the range of motion of the back observed on clinical evaluation in terms of degrees for all planes. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran’s back disability conducted in November 2008, April 2010, September 2015, December 2016, and April 2018. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his thoracolumbar spine disability, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (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. (F) The examiner should indicate whether the Veteran has intervertebral disc syndrome (IVDS) and, if so, describe the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an ‘incapacitating episode’ is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. (G) The examiner is also requested to indicate whether the Veteran’s back disability results in any associated objective neurologic impairments other than sciatic and femoral radiculopathy of the bilateral lower extremities, and, if so, the nature and severity of such neurologic impairment. The examiner should also address the nature and severity of the Veteran’s sciatic radiculopathy of the left lower extremity. (H) The examiner should also address the nature and severity of the Veteran’s back scar(s). (I) The examiner should also comment upon the functional impairment resulting from the Veteran’s back disability and associated radiculopathy. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel