Citation Nr: 21002022 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 18-10 250 DATE: January 12, 2021 ISSUES 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability prior to November 4, 2020, and in excess of 40 percent thereafter. 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy prior to November 4, 2020, and in excess of 20 percent thereafter. REMANDED Entitlement to a rating in excess of 20 percent for a lumbar spine disability prior to November 4, 2020, and in excess of 40 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy prior to November 4, 2020, and in excess of 20 percent thereafter is remanded. REASONS FOR REMAND The Veteran had active service from September 1974 to August 1982, and from July 1984 to July 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were denied in an April 2019 Board decision. In a March 2020 Joint Motion for Remand (JMR), the United States Court of Appeals for Veterans Claims (Court) remanded the increased rating for a lumbar spine disability claim to the Board due to deficiencies in the VA examinations of record. When this case was previously before the Board in June 2020, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. Subsequently in a November 2020 rating decision, the evaluation of lumbar spine disc disease with chronic strain was increased to 40 percent effective November 4, 2020, and the evaluation of lumbar radiculopathy, right lower extremity, was increased to 20 percent effective November 4, 2020. This did not satisfy the Veteran’s appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). In response to the Board’s remand, the Veteran was afforded a VA-contracted examination in November 2020 in which he reported constant flare-ups of the back that occurred daily; were moderately severe; precipitated by increased walking; standing, and bending; and were alleviated by rest and medication. Physical examination showed pain in forward flexion, left lateral flexion, extension, right lateral rotation, right lateral flexion, left lateral rotation, and with weight bearing however, range of motion in degrees was not provided.   In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant’s joint disability and account for painful motion. However, compelled by § 4.59’s place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.    As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.    As the November 2020 examination report did not provide all of the information specified by Correia and Sharp, the claim must be remanded for new VA examination to obtain the information necessary to properly adjudicate this claim.    Additionally, the Board finds that the increased rating for radiculopathy claim is inextricably intertwined with increased rating for a lumbar spine disability claim because the mandated VA spine examination will include information related to the current severity of the Veteran’s radiculopathy. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the manifestations of the service-connected lumbar spine disability.  The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Ensure that the examiner provides all information required for rating purposes.   The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s disability, i.e., the extent of the Veteran’s pain-free motion.    Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done.   Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner(s) is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner(s) must ALSO name the precipitating and alleviating factors. The examiner(s) must ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment.   All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided.    2. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand.  If the decision remains adverse to the Veteran, he and his representative should be furnished an supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.