Citation Nr: 20009744 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 13-13 049 DATE: February 6, 2020 REMANDED Entitlement to an increased disability rating for residuals of compression fracture of lumbar spine at L4 with intervertebral disc syndrome in excess of 20 percent disabling is remanded. Entitlement to an initial disability rating for left leg radiculopathy in excess of 20 percent disabling is remanded. Entitlement to an increased disability rating for global laxity and rotary instability of the left knee in excess of 30 percent disabling is remanded. Entitlement to an increased disability rating for left femur fracture with residual scarring in excess of 10 percent disabling is remanded. Entitlement to an increased disability rating for repair of torn achilles of the right ankle in excess of 10 percent disabling is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The increased rating claims for residuals of compression fracture of the lumbar spine and left leg radiculopathy were previously denied by the Board in a February 2017 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). In November 2017, the Court granted a Joint Motion for Remand (JMR), which directed the Board to obtain an examination that complied with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) and 38 C.F.R. § 4.59. The February 2017 Board decision was vacated and remanded. The Board remanded the case in March 2018 for examination. The Veteran was afforded an examination in May 2018 for his lumbar spine and associated radiculopathy. Having reviewed the record, the Board finds that remand is warranted for the claims on appeal. With respect to the lumbar spine, radiculopathy, left knee, left femur, and right ankle disabilities, remand is warranted because the May 2017 and May 2018 examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiners concluded that an opinion on degree of functional impairment during flare-ups could not be provided without resort to speculation. However, the Board notes that the examiners did not indicate whether the resort to speculation is due to lack of knowledge within the medical community. As such, remand is warranted for new examinations to determine the degree of functional loss during flare-ups, if possible. If it is not possible to provide a specific measurement 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 Board finds that a new examination is not warranted for the left wrist disability as the Veteran is already in receipt for the highest schedular evaluation allowed based on limitation of motion for the wrist. However, remand is still warranted to afford the Veteran due process. Specifically, updated VA treatment records were added to the file after the November 2018 supplemental statement of the case (SSOC) and have not yet been addressed in a subsequent rating decision or SSOC. In December 2019, VA informed the Veteran that he could submit a waiver so that the Board could review the evidence, or, alternatively, the case would be remanded if a response was not received within 45 days. The Veteran did not respond. Accordingly, remand is warranted so that the AOJ may review the new evidence in the first instance. In the October 2019 Informal hearing presentation, the Veteran’s representative raised the issue of entitlement to TDIU based on the service-connected disabilities, including the lumbar spine disabilities. The May 2018 VA examination, he reported being self-employed doing vinyl graphics and indicated that his income was reduced by one half due inability to do certain task because of his back disability. The Board finds that the issue of entitlement to TDIU has been raised and should be addressed. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the Veteran’s service connected disabilities stem for a common etiology and his combined rating is currently 80 percent. Finally, any outstanding VA treatment records from May 2019 to the present should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from May 2019 to present. 2. Provide the Veteran with appropriate notice of how to substantiate a claim for an increased rating on the basis of TDIU. Additionally provide him with VA Form 21-8940 in connection with the claim for entitlement to TDIU, and request that he supply the requisite information. 3. Schedule the Veteran for an examination to determine the current severity of (a) residuals of compression fracture of the lumbar spine and associated radiculopathy, (b) left knee, (c) left femur, and (d) right ankle disabilities. 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 should also indicate the impairment that results from the Veteran's service connected disabilities in terms of occupational functioning and daily activities. In so doing, 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. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Vang, Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.