Citation Nr: 20022459 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 18-39 011 DATE: March 31, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the lumbosacral spine (spine disability) is remanded. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy (RLE radiculopathy) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1975 to November 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018 the Veteran filed a timely notice of disagreement (NOD). In July 2018 the RO issued a statement of the case (SOC) and the Veteran perfected his substantive appeal. 1. Entitlement to a disability rating in excess of 10 percent for spine disability. The Veteran is seeking a higher disability rating for his spine disability. Specifically, he contends that he cannot stand for more than 15-20 minutes and that the pain is worse when he coughs. See April 2018 Report of General Information; April 2018 NOD; see also June 2019 VA Treatment Record (obtaining consent for long-term opiod therapy for back pain with the purpose of increasing function and decreasing pain). Here, in November 2017, the Veteran was afforded a VA examination. The Veteran reported radicular pain getting worse, pain radiating from low back to left leg and knee, numbness in his toes, and functional loss in that he cannot stand for more than 15 minutes. Initial range of motion (ROM) testing revealed motion to be all normal; forward flexion to 90 degrees; and extension, right and left lateral flexion, and right and left rotational flexion to 30 degrees. Pain was noted on examination to cause functional loss but there was no evidence of pain on weight-bearing. Although the examiner determined that the Veteran is able to perform at least three repetitions, the examiner did not examine the Veteran immediately after repetitive use over time or during a flare-up. As to repeated use over time and flare-ups, the examiner asserted that he was unable to speculate as to whether pain, weakness, fatigability, or incoordination significantly decrease over time without mere speculation. He was unable to describe any functional loss in terms of range of motion, asserting that without resorting to mere speculation, it is not possible to estimate loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the 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 following repetitive use and 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. The November 2019 VA examination does not contemplate the severity of the Veteran’s spine disability following repetitive use or repetitive use over time despite the Veteran’s statement that he is unable to stand more than 15 minutes at a time. The examiner was also unable to describe the limitation in ROM following repetitive use, repetitive use over time. As such, the VA examination is inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, a remand for a new VA examination is necessary. 2. Entitlement to a disability rating in excess of 20 percent for RLE radiculopathy. The Veteran is seeking a higher disability rating for his RLE radiculopathy. Specifically, he contends that his disability is more severe than reflected by his currently assigned disability rating. As noted above, the Veteran’s claim for a higher disability rating for his service-connected spine disability is being remanded for additional development. The outcome of such development would impact the Veteran’s claim for an increased rating for his service-connected RLE radiculopathy. Therefore, the Board finds these issues to be inextricably intertwined and must remand the claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The AOJ should obtain all outstanding VA treatment records and any private treatment records identified by the Veteran. All obtained records should be associated with the evidentiary record. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his spine disability. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. All testing deemed necessary to rate the spine disability under the criteria of the VA rating schedule must be conducted and the results reported in detail. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for the right hip. The examiner should comment as to the extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during repetitive use and repetitive use over time expressed as additional range of motion loss, if possible. In doing so, the examiner should consider the Veteran’s competent lay assertions. See April 2018 Report of General Information; April 2018 NOD. 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 elicit from the Veteran a complete history of any flare-ups of his spine disability. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the Veteran’s spine disability. The examiner should describe the additional loss in degrees or percentage. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. If the examiner is unable to do so, the examiner should indicate that all procurable data was considered (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. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examination was not performed during a period of repeated use over time or a flare-up. A rationale for all opinions must be provided. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, Associate Counsel 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.