Citation Nr: 21000346 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-02 331 DATE: January 5, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent prior to December 4, 2019, and in excess of 20 percent thereafter (excluding periods of temporary total evaluation) for lumbar strain with degenerative disc disease, status post L5-S1 discectomy, is remanded. Entitlement to an initial evaluation in excess of 20 percent for osteoarthritis of the cervical spine is remanded. Entitlement to an initial evaluation in excess of 10 percent for right knee strain is remanded. Entitlement to an initial compensable evaluation prior to March 16, 2012, and in excess of 20 percent thereafter, for left lower extremity radiculopathy associated with lumbar strain with degenerative disc disease, status post L5-S1 discectomy, is remanded. Entitlement to an initial compensable evaluation prior to October 18, 2018, and in excess of 20 percent thereafter, for mild incomplete paralysis of the left radial nerve associated with osteoarthritis of the cervical spine, is remanded. REASONS FOR REMAND The Veteran served on active duty from March to August 1988, May to July 2003, October 2004 to January 2006, and March 2008 to May 2009. The Board previously remanded this matter in July 2019. There has not been substantial compliance with the remand directives. Another remand is needed before the Board can adjudicate the claims on appeal. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s prior remand included a directive to obtain the Veteran’s private physical therapy records for the neck and back. It does not appear there was any effort to obtain these outstanding medical records. In December 2019, the Veteran was last provided VA examinations to evaluate the severity of his lumbar spine, cervical spine, right knee, radiculopathy and radial nerve disabilities. However, the respective examination reports do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26 (2017), in terms of assessing the extent of any additional functional loss suffered during flare-ups. Notably, the Board remanded the Veteran’s claims with a specific directive to have the examiner “[a]ddress the Veteran’s contentions that without his pain medication his cervical spine, lumbar spine and right knee disabilities would be worse.” In response, the December 2019 VA examiner provided range-of-motion estimates of the respective joints as identical to the initial measurements taken during the examinations. The examiner also provided range-of-motion estimates due to flare-ups that were identical to the measurements taken of the respective joints. The VA examiner failed to provide any explanation for why there would be no change in functional impairment of the respective joint despite the Veteran’s reports of flare-ups and reduced functional ability of the joints when pain medication was not used. Remand is needed for new VA examinations with more thorough findings in compliance with Sharp. Remand is also needed because the December 2019 VA examiner failed to address the Board’s question asking the examiner to address whether there were any manifestations of left upper extremity radiculopathy prior to the October 2018 VA examination. The Veteran’s increased rating claim mild incomplete paralysis of the left radial nerve is intertwined with the issues currently on appeal. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of this claim must be deferred. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all outstanding private medical providers who have treated the Veteran, to include Kenneth Jason Kelly. Make two requests for the authorized records from all identified private medical providers, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for examinations (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician – preferably an orthopedic surgeon – to determine the current severity of his service-connected osteoarthritis of the lumbar spine, lumbar strain with degenerative disc disease, right knee strain, left lower extremity radiculopathy, and mild incomplete paralysis of the left radial nerve. Based on the examination and review of the record, the examiner must specifically address the following: (a) Describe all impairment of the neck, back, left lower extremity radiculopathy, left upper extremity and right knee disabilities, and make determinations regarding range of motion, including any additional functional impairment. (i) The examinations must address active and passive motion, weight-bearing and nonweight-bearing information, as required by 38 C.F.R. § 4.59. 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. (ii) The examiner should specifically ask the Veteran to describe the factors that precipitate a flare-up of the neck, back and right knee and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. (b) Identify all neurological manifestations related to the neck and back disabilities; identifying the specific nerve involved and extent of involvement. (i) Were there were any manifestations of left upper extremity radiculopathy prior to the October 2018 VA examination? If so, identify the likely date of onset. (c) Address the Veteran’s contentions that without his pain medication his cervical spine, lumbar spine and right knee disabilities would be worse. Is it possible to quantify that potential loss? If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made, to include whether there are additional tests or information that might be sufficient to estimate such additional functional loss during flares. An opinion regarding flare-ups should be based on information available in the claims file as to frequency, duration, characteristics, severity or functional loss, to include lay statements. 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). M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.