Citation Nr: 1818482 Decision Date: 03/27/18 Archive Date: 04/04/18 DOCKET NO. 15-02 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating higher than 10 percent for left knee tendonitis with arthritis. 2. Entitlement to a rating higher than 20 percent for a low back strain. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran had active service from May 1971 to May 1981 and from June 1986 to August 1992. These matters come before the Board of Veterans' Appeals (Board) from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran requested a hearing before the Board; however, she withdrew her hearing request in December 2015. See December 2015 statement. In February 2016, February 2017 and August 2017, the Board remanded the Veteran's claims for additional evidentiary development. The case has since returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to a rating higher than 20 percent for a low back strain and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's left knee tendonitis with arthritis manifests with noncompensable limitation of motion and x-ray indications of degenerative arthritis of one major joint. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for osteoarthritis of the left knee are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321. 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Remand Compliance As noted in the Introduction, this case was remanded to the AOJ for additional development in February 2016, February 2017 and August 2017. The Board is satisfied that there has been substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-67 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1999) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). II. Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran has not raised issues with either the duty to notify or the duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). III. Increased Rating for Left Knee Tendonitis with Arthritis The Veteran served in the United States Army as a Unit Supply Specialist and an Administrative Specialist. The Veteran contends that her service-connected left knee tendonitis with arthritis is more severe that that contemplated by the disability rating that is assigned currently. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2017). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 (2017). Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Sharp v. Shulkin, No. 16-1385, decided September 6, 2017. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 (2017)). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements. Id. Where there is a question as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, but with x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations, a 20 percent evaluation is assigned. With x-ray evidence of involvement of two or more major joints or two or more minor joint groups, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). With any form of arthritis, painful motion is an important factor. It is the intent of the rating schedule to recognize actually painful, unstable or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). A compensable evaluation under Diagnostic Code 5003 and 38 C.F.R. § 4.59 (for painful motion) is in order where arthritis is established by x-ray findings and no compensable limitation of motion of the affected joint is demonstrated. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also VAOPCGPREC 9-98 (Aug. 14, 1998). Where a compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is not applicable. For the purpose of rating disability due to arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f) (2017). The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2017). Leg flexion limited to 60, 45, 30, and 15 degrees warrant noncompensable, 10 percent, 20 percent, and 30 percent evaluations, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). Leg extension limited to 5 degrees warrants a noncompensable evaluation, and extension limited to 10 degrees warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004). The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable. Id. Under the criteria for impairment of the knee other than ankylosis, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). Arthritis manifested by limitation of motion and instability of the knee are two separate disabilities, and a veteran may be rated separately for these symptoms. See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997) (when a claimant has arthritis and is rated under instability of the knee, those two disabilities may be rated separately under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 or 5010 and Diagnostic Code 5257.). Under Diagnostic Code 5258, a 20 percent rating is warranted for a dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017). Under Diagnostic Code 5259, a 10 percent disability rating is warranted for a symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2017). Diagnostic Code 5259 requires consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of the semilunar cartilage may result in complications producing loss of motion. VAOPGPREC 9-98 (Aug. 14, 1998). Hyphenated diagnostic codes are used when a rating under one diagnostic requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.29 (2017). Evidence The Veteran served as an Administrative Specialist and a Unit Supply Specialist in the United States Army. Among other decorations, she received an Army Achievement Medal. In an April 1, 2011 Report of General Information (VA FORM 21-0820), a VA representative wrote that the Veteran called the RO to place a claim for individual unemployability (IU), which encompassed her increased rating claims. The RO applied this date as the Veteran's date of claim, which is currently under appeal. A letter from the Veteran was received in May 2011. She referenced a September 1993 article from Family Circle magazine as it related to her own life situation. She wrote that she knew that her left knee was bad, but now she felt that she was falling apart. In June 2011, the Veteran was afforded a VA examination. The examiner reviewed the claims file, considered the Veteran's accounts of her medical history, and conducted a physical examination. As to subjective aspects of left knee tendonitis with arthritis, the examiner noted that the Veteran reported weakness, stiffness, swelling, heat, giving way, locking, fatigability, tenderness, and dislocation. The Veteran contended that her left knee pain was 10, in a one to 10 scale. Also, she contended that she had flare-ups as often as three times a week, lasting as long as two hours. However, she stated that she neither experienced functional impairment nor any additional limitation of joint motion during the reported flare-ups. The Veteran also stated that left knee tendonitis with arthritis had neither resulted in incapacitation over the prior 12 months nor any functional impairment. Upon physical examination, the examiner opined that the Veteran's posture was normal; she walked with a normal gait; and her tandem gait while walking was normal. Left knee flexion was to 140 degrees; left knee extension was to zero degrees. Joint function, according to the examiner, was not limited by pain, fatigue, lack of endurance nor incoordination after repetitive use. Left knee medial/lateral collateral ligament stability testing; anterior/posterior cruciate ligament stability testing; and medial/lateral meniscus testing were all within normal limits. The examiner opined that as to the VA established diagnostic impression of left knee tendonitis with arthritis, there was no change in impression. Objective findings included tenderness and normal range of motion. As noted above, the Veteran provided extensive subjective impressions, which were not mirrored in the objective findings. In December 2011, Social Security Administration (SSA) medical records were received. Review reveals neither assessments, diagnostic testing nor impressions as to the Veteran's left knee tendonitis with arthritis. In July 2012, the Veteran submitted a notice of disagreement. Among her many points of disagreement, she stated that her left knee arthritis (and other rated disabilities) are all related to her untreated disease of cancer. A January 2013 medical treatment report from C. Center, a private cardiovascular treatment center, referenced the Veteran's complaint of joint weakness. As to the musculoskeletal system, an examiner opined that that there was no presence of kyphosis; muscle strength was normal; and gait was normal. The report included a notation concerning a past medical history of knee pain. In January 2015, the Veteran submitted a VA FORM 9. She provided an extensive summary as to left knee tendonitis with arthritis (and other contended musculoskeletal disorders). She wrote that she was unable to perform normal working movements-with normal excursion, strength, coordination, speed, and endurance. She also noted that she experienced weakness and that her motion was limited by pain. Other contentions included water on the knee; bone rubbing against bone; knee locking; lateral instability; foot drag; and spasms. She commented that she used crutches or a cane. Furthermore, the Veteran iterated a host of VA regulations which she believed to be applicable to her service-connected left knee tendonitis with arthritis. A May 2015 examination report from T. C. Clinic, a private treatment facility, reported as to the Veteran's musculoskeletal system that lower extremity joints were normal. A May 2015 admission history and physical report from V. C. U., a university medical center, reported that the Veteran's left leg gave out on occasion. The report also took note of a history of knee injury, adding that the Veteran was not wearing a knee brace. In October 2016, the Veteran was afforded a VA examination. The examiner reviewed the claims file, considered the Veteran's accounts of her medical history, and conducted a physical examination. The examiner provided a diagnostic impression of left knee tendonitis with arthritis. The examiner noted that the Veteran stated that she injured her left knee in basic training, and the onset of her symptoms began in 1979. According to the Veteran, her left knee symptoms had worsened-manifested through increased pain and weakness. Left knee flexion was from zero to 130 degrees; extension was to 130 degrees to zero degrees. Abnormal range of motion itself was not reported to contribute to a functional loss. The examiner found no objective evidence of localized tenderness on pain on palpation of the joint or associated soft tissue, and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions; moreover, there was no additional loss of function of range of motion after three repetitions. The examiner indicated that the Veteran was being examined immediately after repetitive use over time. Pain, weakness, fatigability or incoordination, according to the examiner, did not limit functional ability with use over time. The examination was not conducted during a flare-up. As such, the examiner reported that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. However, the examiner opined that pain, weakness, fatigability or incoordination did not limit the Veteran's functional ability during flare-ups. The Veteran contended that she used a walker on a regular basis. The examiner reported less movement than normal on the left side. He opined that left knee flexion and flexion muscle strength was 5/5, adding that there was no muscle atrophy. No ankylosis of the left knee was present. Joint stability testing yielded no left knee history of subluxation, no history of lateral instability, and no history of recurrent effusion. In whole, Lachman testing, posterior drawer testing, medial instability testing, and lateral instability testing yielded normal results. The examiner reported that the Veteran has never had recurrent patellar dislocation, shin splints, stress fractures, chronic compartment syndrome, or any other tibial or fibular impairment. The Veteran did not have a present meniscus condition; moreover, there were no indications of past meniscus conditions. The examiner provided that there were no other pertinent physical finding, to include scars. In April 2017, the Veteran was afforded a VA examination. The examiner reviewed the claims file, considered the Veteran's accounts of her medical history, and conducted a physical examination. The examiner provided that there was an established diagnostic impression of left knee tendonitis with arthritis, which was established 10 years earlier. The Veteran reported functional loss during flare-ups-pain with any walking, squatting, sitting, or standing. She also reported that she could not run. Left knee flexion was zero to 140 degrees; left knee extension was 140 to zero degrees. Objective evidence of localized tenderness or pain of the joint or associated soft tissue was manifested by wincing with palpation anywhere on the knee mildly. The Veteran was able to perform repetitive-use testing of a least three repetitions, with no additional loss of function or range of motion after three repetitions. Flexion and extension mirrored the results of non-repetitive-use testing. No category of functional loss was applicable here. Examination was medically consistent with Veteran's statement describing functional loss with repetitive use over time. Functional loss was manifested by reported pain. Examination did not take place during a flare-up; therefore, the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. The examiner did not note additional factors contributing to disability. However, contributing factors included disturbance in locomotion; interference with sitting; and interference with standing. Muscle strength testing yield 5/5 in left knee flexion and extension. Moreover, there was no presence of muscle atrophy. There was no ankylosis of the left knee joint. The examiner reported no history of recurrent subluxation; no history of lateral instability; and no history of recurrent effusion. Lachman testing; posterior instability testing; medial instability testing; and lateral instability yielded normal results. Shin splints were noted; however, there were no symptoms. The examiner opined that the shin splints had resolved. Furthermore, the examiner noted the presence of a stress fracture of the lower left leg. Like the shin splints, the fracture had resolved. The examiner indicated that there were no meniscus conditions. The Veteran stated that she used a walker on a constant basis. As to Correia criteria, the examiner reported that there was objective evidence of pain when the left knee was used in non-weight bearing. The examiner provided that there was no change in the Veteran's service-connected diagnosis. As to the issue of the Veteran's reduced function in the left knee, the examiner opined that she used a walker and knee immobilizer but had good muscle tone and no atrophy. Moreover, extrapolating from this the examiner opined that there were few objective findings. Moreover, the examiner noted that objective findings were pain with any walking, squatting, prolonged sitting, or standing. Even though the Veteran could not run, she had no atrophy and good muscle tone. A June 2017 treatment report from H. P., a private care provider, noted that the Veteran had a past medical history of osteoarthritis of the knee. In a July 2017 VA social industrial survey note, a social worker opined that the Veteran stated her service-connected disabilities included her left knee. In conjunction with other service-connected, she contended that it brought pain in waves and interfered with sleep. In November 2017, the Veteran was afforded a VA examination. The examiner reviewed the claims file, considered the Veteran's accounts of her medical history, and conducted a physical examination. The examiner provided that the Veteran had an established diagnostic impression of left knee tendonitis. The Veteran reported that she did not have flare-ups. She did report that she had functional loss or impairment, indicating that she was unable to sit or stand for prolonged periods. The examiner took note of x-ray imaging performed in 2004 which revealed degenerative joint disease (degenerative arthritis) of the left knee medial compartment. Furthermore, the examiner discussed the results of a 2008 MRI which provided an assessment of distal femoral and proximal tibia trabecular lucencies. Left knee flexion was zero to 140 degrees. Extension was 140 to zero degrees. No pain was noted in this examination; moreover, there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing of at least three repetitions, with no additional loss of function or range of motion. The range of flexion and extension mirrored that of non-repetitive use. The Veteran was not examined immediately after repetitive use over time. Thus, the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to opine as to pain, weakness, fatigability or incoordination significantly limiting use over a period of time without resort to mere speculation. Muscle strength testing of the left knee yielded 5/5 as to both flexion and extension. No muscle atrophy was present. Moreover, there was no presence of ankylosis of the left knee joint. Recurrent subluxation; history of lateral instability; and recurrent effusion were absent. Lachman testing, posterior instability testing; medical instability testing, and lateral instability were all normal. There was no indication of recurrent patellar dislocation, shin splints, stress fracture, or any other tibial or fibular impairment. The examiner reported that the Veteran had never had a meniscus condition. The examiner provided no additional pertinent physical findings, including scars. The Veteran reported that she used a brace on a regular basis. The examiner opined that the left knee disability did not impact the Veteran's ability to perform any type of occupational task. As to Correia, there was no objective evidence of pain on passive motion and there was no objective evidence of pain when the left knee joint was used in a non-weight bearing capacity. The examiner indicated that the opposing joint was undamaged. In December 2017, a magnetic resonance imaging (MRI) study of the Veteran's left knee was performed at V. H. Imaging, a private facility. The interpreting radiologist provided findings of mild tricompartmental degenerative joint disease (DJD) and small joint effusion. However, there was no presence of Baker's cyst; ligamentous structures and extensor mechanism were intact; and there was no evidence of surface meniscus tear. As an impression, the radiologist provided mild DJD, opining that the Veteran's left knee was otherwise negative for internal derangement. In a December 2017, NOD, the Veteran referenced the MRI report, as discussed above. Analysis Diagnostic Code 5257 provides for a rating schedule a knee impairment of subluxation or lateral instability as severe, moderate of slight. Findings in the June 2011, October 2016, April 2017, and November 2017 VA examinations indicated that there was no laxity in the left knee. The four respective VA examiners opined that the left knee joint was stable, without history of recurrent subluxation or lateral instability. As such, there is no predicate for a rating for a compensable rating based solely on subluxation or lateral instability of the knee pursuant to Diagnostic Code 5257. At worst, the Veteran had 130 degrees of flexion, and extension from 130 to zero degrees, as indicated in the October 2016 VA examination, As noted above, the normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2017). Even considering the Veteran's report of pain with walking, squatting , sitting, or walking, as noted by the October 2016 VA examiner, objective testing did not reveal evidence of functional loss as per DeLuca. Discomfort and pain alone are not sufficient bases to warrant as additional rating unless it causes a functional loss. See Mitchell, 25 Vet. App. at 38-43. As such, there is not a basis for a rating for a compensable rating based solely on limitation of extension pursuant to Diagnostic Code 5261. The RO assigned the 10 percent disability rating under Diagnostic Code 5010. Diagnostic Code 5010 provides a rating schedule for arthritis due to trauma, substantiated by x-ray findings, which is rated in the same way that degenerative arthritis is rated under Diagnostic Code 5003. As discussed above, degenerative arthritis (Diagnostic Code 5003) established by x-ray findings allows for a compensable rating for an effected joint when limitation of motion is noncompensable. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also VAOPCGPREC 9-98 (Aug. 14, 1998). For the Veteran to receive a higher disability rating under Diagnostic Code 5003, there must be x-ray involvement of two or more major joints or more minor groups, with occasional incapacitating exacerbations. For purposes of rating disability due to arthritis, the knee is considered a major joint. Both the x-ray evidence of record from 2004 and the MRI evidence of record from 2008 fail to provide findings that the Veteran's osteoarthritis of the left knee involved another major joint or more minor joint groups. Moreover, review of the evidence of records does not reveal that the Veteran has experienced incapacitating exacerbations. In sum, the evidence of record does not indicate that the Veteran's osteoarthritis of the left knee involves two major joints or more minor joint groups, with occasional incapacitating exacerbations. As noted above, x-ray and MRI findings do not indicate that the Veteran's osteoarthritis of the left knee involves another major joint or more minor joint groups, with occasional incapacitating episodes. Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 10 percent for osteoarthritis of the left knee. See 38 C.F.R. § 4.71(a), Diagnostic Code 5003 (2017); see also 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("[A] veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."). ORDER Entitlement to a rating higher than 10 percent for left knee tendonitis with arthritis is denied. REMAND Although the Board regrets the additional delay, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017). In Sharp v. Shulkin, No. 16-1385, decided September 6, 2017, the United States Court of Appeals for Veterans Claims ("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 appellant was not then suffering from a flare of any of his disabilities, failed to ascertain adequate information-such as frequency, duration, characteristics, severity, and functional loss-with regard to flare-ups by alternative means. Pursuant to Sharp, the Board remands for supplemental examinations. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request all records of VA outpatient treatment from September 2016, if any, for the Veteran and associate them with the electronic claims file. 2. Contact the Veteran to identify whether there are any outstanding private medical records pertaining to low back strain. If there are outstanding records, prepare releases for the Veteran to sign, obtain the records, and associate them with the electronic claims file. 3. Schedule the Veteran for a supplemental VA examination with the examiner who conducted the September 2017 examination, or if she/he is unavailable, with another appropriate orthopedic clinician. The entire claims file, including a copy of this REMAND, must be made available to the clinician and the clinician's report must note complete review of the claims file. The examiner should first indicate whether examination of low back strain is taking place during a flare-up. The Board requests that the examiner explain the meaning of flares to the Veteran before providing an indication here. A "flare" has been defined as a "sudden exacerbation of a disease." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 715 (32d ed. 2012). By definition, flare or flare-up cannot be constant. If examination is performed during a flare-up, the examiner must express an opinion as to whether pain or other manifestations during flare-ups or with repeated use over time could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range-of-motion loss due to pain on repeated use or during flare-ups. If the Veteran is not suffering from a flare-up at the time of the examination, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding flare-ups by alternative means (including history provided by the Veteran) and to estimate the functional impact of flare-ups in terms of range of motion on the basis of that information. If an estimate cannot be provided, the examiner should provide a sufficiently detailed explanation as to why this is so. It is not sufficient to state only that any such information would be subjective and therefore of no value. A rationale for the opinions in the examiner's supplemental examination report must be provided. 4. After completion of the above and review of the expanded record, re-adjudicate the Veteran's claims for a rating higher than 20 percent for a low back strain and entitlement to a TDIU. If any determination remains adverse to the Veteran, the Veteran should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed before the record is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs