Citation Nr: 18158732 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 14-31 313 DATE: December 18, 2018 REMANDED 1. Entitlement to a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome. 2. Entitlement to a rating in excess of 10 percent prior to October 8, 2018, and in excess of 20 percent on and after October 8, 2018, for left lower extremity sciatica. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). INTRODUCTION The Veteran served on active duty from July 1980 to April 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded these claims in June 2018, for additional development. After the issuance of a November 2018 supplemental statement of the case, the appeal was remitted to the Board for further appellate review. In May 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. In November 2018, VA received the Veteran’s a request for a copy of his records from his claims folder pursuant to the Freedom of Information Act (FOIA). This request has not yet been fulfilled. As his appeal is being remanded for additional development, there is no prejudice to the Veteran in referring his FOIA requests to the agency of original jurisdiction (AOJ) for appropriate action. REASONS FOR REMAND Pursuant to the June 2018 remand, the Veteran was provided VA examinations in July 2018 and in October 2018. The July 2018 VA examiner erroneously determined that the Veteran’s service-connected lumbar spine intervertebral disc syndrome was not manifested by flare-ups. Based on that conclusion, the examiner did not then assess whether the Veteran experienced additional functional loss during flare-ups or the extent thereof. Additionally, in an August 2018 letter, the Veteran complained that the VA examination lasted only 5 minutes and, thus, inadequately assessed the severity of his disabilities. For unstated reasons, the Agency of Original Jurisdiction (AOJ) then provided the Veteran with another VA examination, which occurred in October 2018. The October 2018 VA examiner stated that, while the Veteran experienced flare-ups, evaluating their severity could not be accomplished without resorting to speculation. The basis for this conclusion was that the Veteran was not experiencing a flare-up at the time of the examination. However, the mere lack of an opportunity by a VA examiner to observe a flare-up of a condition is an insufficient basis for not estimating its functional effects. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, the Board finds that a remand is required in order to provide the Veteran another VA examination. With respect to left lower extremity sciatica, the Veteran submitted recent VA treatment reports demonstrating the presence of diabetic neuropathy, as well left knee osteoarthritis, left extensor hallucis tendonitis, and myofascial pain. Service connection for left knee disability has been previously denied, service connection has not been granted for diabetic neuropathy, and the October 2018 VA examiner did not attempt to differentiate the symptoms and functional impairment associated with the Veteran’s service-connected left lower extremity sciatica from those associated with the non-service-connected disabilities. See 38 C.F.R. § 4.14. Additionally, according to a September 2018 VA treatment report, the Veteran endorsed pain radiating into both legs, not just his left lower extremity, suggesting a worsening of his condition. For these reasons, the Board finds that a remand is warranted to provide the Veteran another VA examination. The issue of entitlement to TDIU is inextricably intertwined with the other issues being remanded herein. As such, a remand is warranted for contemporaneous consideration. The matters are REMANDED for the following action: 1. Take action to fulfill the Veteran’s pending FOIA request. 2. Schedule the Veteran for the appropriate VA examination to determine the current severity of his service-connected intervertebral disc disease and left lower extremity sciatica. Make the Veteran’s claims file available to, and ensure that it is reviewed by, the VA examiner. The examiner is asked to fully describe all manifestations of the disability. All necessary tests must be conducted, and all clinical findings must be reported in detail. The examiner should administer range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion ESTIMATING any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner MUST state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner is asked to evaluate any neurological abnormalities associated with the Veteran’s intervertebral disc disease, including, but not limited to, left lower extremity sciatica. If possible, the examiner is asked to differentiate the symptoms associated with the Veteran’s service-connected left lower extremity sciatica from those associated with any non-service-connected disability (such as, diabetic neuropathy and left knee osteoarthritis, among others). A thorough rationale for any opinion rendered is required 3. Once the above actions have been completed, re-adjudicate the issues, to include entitlement to TDIU. If the Veteran still does not satisfy the schedular criteria for entitlement to a TDIU, refer the issue to the Director of Compensation Service for consideration pursuant to 38 C.F.R. § 4.16(b). The electronic claims file must be made available to the Director of Compensation Service. (Continued on the next page)   4. If any benefit remains denied, provide the Veteran and his attorney with a supplemental statement of the case. After they have had an adequate opportunity to respond, return the appeal to the Board for further appellate review. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel