Citation Nr: 19115652 Decision Date: 03/04/19 Archive Date: 03/04/19 DOCKET NO. 16-48 149 DATE: March 4, 2019 REMANDED Entitlement to an initial rating in excess of 20 percent disabling for lumbar disc disease from March 27, 2013 to February 3, 2016, and in excess of 40 percent thereafter is remanded. Entitlement to an initial rating in excess of 20 percent disabling for radiculopathy of the left lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent disabling for radiculopathy of the right lower extremity is remanded. Entitlement to a rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2004 to February 2009. These matters are before the Board of Veterans’ Appeals (Board) on appeal from February 2014 and June 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes a May 2016 RO rating decision increased the lumbar degenerative disc disease to 40 percent disabling, effective February 3, 2016. In addition, the issue of radiculopathy of the left lower extremity was increased to 20 percent disabling, effective the date of the claim March 27, 2013. On a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by the law and regulation, and it follows that such claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, such issues have been recharacterized as shown on the title page. 1. Entitlement to an initial rating in excess of 20 percent disabling for lumbar disc disease from March 27, 2013 to February 3, 2016, and in excess of 40 percent thereafter is remanded. 2. Entitlement to an initial rating in excess of 20 percent disabling for radiculopathy of the left lower extremity is remanded. 3. Entitlement to an initial rating in excess of 10 percent disabling for radiculopathy of the right lower extremity is remanded. 4. Entitlement to a rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) is remanded. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board sent a letter to the Veteran and his representative on January 11, 2019, requesting an AOJ waiver of VA/SSA evidence added to the claims file in order to adjudicate the appeal. The Veteran was informed that the case would be remanded to the AOJ if no waiver was received. No waiver was received by the 45-day deadline, so the Board must remand the claim for issuance of a Supplementary Statement of the Case (SSOC), which addresses this new evidence. Additionally, in February 2016, the Veteran was afforded VA examinations for his lumbar spine and peripheral lower extremity nerve conditions. According to the VA examiner the Veteran refused to try repetitive use testing due to experiencing too much pain. Further, the examiner was unable to say without resorting to speculation any issues regarding pain, weakness, fatigability or incoordination limitations due to repetitive use testing. The United States Court of Appeals for Veterans Claims (Court) specifically determined in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), that if a VA examination is not being conducted during a flare-up, the examiner should nevertheless provide an opinion derived from the information obtained during the evaluation as to the additional loss of range of motion that may be present during a flare-up. Additionally, 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), and whether any member of the medical community at large could not provide such an opinion without resorting to speculation. Id. Here, the examiner has not provided information on whether or not any member of the medical community at large could not provide such an opinion without resorting to speculation. Further, the Board notes that the Veteran has had numerous examinations during the pendency of his appeal provided by the VA as well as outside physicians related to his PTSD, lumbar spine and radiculopathy issues. No other examiner has described the Veteran as uncooperative. Furthermore, the contemporaneous treatment records show that the Veteran has reported pain regarding his back on a consistent basis. As such, the Board finds remand is warranted to afford the Veteran another VA examination for his lumbar spine. Furthermore, the Board finds that the issues of radiculopathy of the left lower and right lower extremities are inextricably intertwined with the issue of lumbar disc disease. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). In addition, the TDIU issue is remanded due to the pending results of the lumbar spine examination along with a November 2018 VA PTSD examination that was submitted to the Board without AOJ adjudication. Updated VA treatment records should also be associated with the record on remand. See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.) The matters are REMANDED for the following actions: 1. Update/Obtain VA treatment records from July 2018 to the present. Document all requests for information as well as responses in the claims file. 2. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine his current symptomatology related to his lumbar disc disease and bilateral lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect of the Veteran’s lumbar spine and bilateral radiculopathy on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel