Citation Nr: 21004542 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-16 433 DATE: January 27, 2021 REMANDED Entitlement to a rating in excess of 30 percent for sinusitis is remanded. Entitlement to an initial rating in excess of 10 percent prior to March 27, 2014, for left lower extremity (LLE) sciatic radiculopathy is remanded. Entitlement to a rating and in excess of 20 percent from March 27, 2014, for LLE sciatic radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for right knee, chondromalacia, oblique tear of the medial meniscus (right knee instability) is remanded. Entitlement to a rating in excess of 10 percent prior to October 21, 2019, for degenerative disc disease of the lumbar spine (lumbar spine disability) is remanded. Entitlement to a rating in excess of 20 percent for lumbar spine disability is remanded. Entitlement to a total disability rating due to individual unemployability caused by service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1983 to February 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In May 2019, the Board remanded the appeal. During remand status, the RO granted a 20 percent rating, effective October 21, 2019, for lumbar spine disability. As the award does not represent a full grant of the benefit sought on appeal, the claim remains in appeal status. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to a disability rating in excess of 30 percent for sinusitis. 2. Entitlement to an initial rating in excess of 10 percent prior to March 27, 2014, for LLE sciatic radiculopathy. 3. Entitlement to a rating in excess of 20 percent from March 27, 2014, for LLE sciatic radiculopathy. 4. Entitlement to a disability rating in excess of 10 percent for right knee instability. 5. Entitlement to a rating in excess of 10 percent prior to October 21, 2019, for lumbar spine disability 6. Entitlement to a rating in excess of 20 percent from October 21, 2019, for lumbar spine disability. Issues 1 -6: At his October 2018 hearing, the Veteran stated that he had near constant sinusitis with headaches, purulence with crusting and discharge. See Hearing Transcript (October 2018). He reported pain and tenderness under his eyes as well as difficulty hearing from the drainage into his ear, and stated that he had a tooth pulled, which the doctor told him was infected by sinus drainage. Id. In regard to the Veteran’s claim for LLE radiculopathy, the Veteran testified that one of the reasons that he sees his chiropractor monthly is foot drop, and that his neurologist told him that he needs to undergo a laminectomy. Id. In regard to his right knee instability, the Veteran contends that he is entitled to a higher rating, because the current 10 percent rating does not reflect the severity of that disorder. During his October 2018 hearing, he reported that his right knee instability was manifested primarily by swelling, popping, locking although not recently, grinding, instability, and giving way. He also reported that he normally used a cane for ambulation. Id. He acknowledged that he had not required any treatment for the knee but self-treated with ice, rest, and pain medication. Id. In regard to his lumbar spine disability, during his October 2018 hearing, the Veteran contended that the ratings for his lumbar spine disability prior to and after October 21, 2019, did not adequately reflect the severity of that disability during either period of time. Id. He stated that it was especially painful on awakening, and that he experienced difficulty bending and standing or sitting for prolonged periods, necessitating him to constantly shift. Id. He reported usually wearing his back brace around the house or when he is one place for a longer period of time, and that he used a cane daily. Id. He reported daily back spasms, as well as weakened movement and an inability to execute motions smoothly. Id. He noted that he was prescribed pain medication and required the use of a TENs unit. He stated that his back pain caused marked interference with his daily activities, sitting down and getting off the chair, and has resulted in incapacitating episodes. Id. The Board finds that a remand is necessary to obtain outstanding treatment records. See 38 C.F.R. § 3.159(c)(2); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). First, VA treatment records reflect that private medical records of treatment for lumbar spine disability and LLE radiculopathy had been scanned into the record and note Vista-Imaging-scanned documents. However, the VA treatment records in the claims file do not include those scanned (Vist-A Imaging) documents. Remand is necessary to obtain the relevant outstanding treatment records, private and VA, which should then be associated with the claims file. See 38 C.F.R. § 3.159(c)(2); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Second, the Veteran was noted to be undergoing physical therapy for his LLE radiculopathy and right knee instability; however, complete physical therapy records do not appear to be included with the VA treatment notes. The record clearly reflects that the Veteran believes outstanding treatment records are relevant and probative to substantiating his claims. See VA 21-0820 Report of General Information (January 2021). Therefore, remand is necessary to obtain VA records and any relevant non-VA treatment records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). With regard to increased ratings for the Veteran’s lumbar spine disability, for the period prior to October 21, 2019, the June 2014 VA examination does not provide necessary findings as to flare-ups, weight-bearing and non-weightbearing range of motion, and passive and active range of motion. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not “ascertain adequate information, i.e., frequency, duration, characteristics, severity, or functional loss regarding his flares by alternative means” and then “estimate the Veteran’s functional loss due to flares based on all the evidence of record including the Veteran’s lay information.” Sharp, 29 Vet. App. at 33. As noted by the United States Court of Appeals for Veterans Claims in Sharp, such findings are contemplated by the VA Clinician’s Guide. The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). In this case, the examiner noted the Veteran’s description of flare-ups lasting for 24 hours and his statement that he tolerated pain, but did not provide at what point loss of range of motion is anticipated, stating instead that the Veteran was not experiencing a flare-up at the time of the examination. Moreover, the examiner provided conflicting findings regarding range of motion after repetitive-use testing. Specifically, the examiner found no additional limitation in range of motion after repetitive-use testing, but also found that the Veteran has additional limitation of range of motion after repetitive use due to less movement than normal, pain on movement and interference with sitting, standing and/or weight-bearing. Thus, a retrospective review of the prior VA examination dated in June 2014 and treatment records prior to October 2019 is necessary so that VA adjudicators may then evaluate whether the criteria for a higher rating has been met at any time during the appeal period for the lumbar spine disability. Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008). For the period after October 21, 2019, while the record contains contemporaneous VA examinations regarding the Veteran’s lumbar spine disability, the December 2019 VA examination does not comply with the requirements in Correia. Specifically, the examination, while indicating that the Veteran experiences pain on forward flexion, extension, bilateral later flexion, bilateral lateral rotation and weight-bearing, does not record the degree at which pain begins on active and passive motion, and with weightbearing and non-weightbearing movement, and thus does not describe the limited range of motion in terms of degrees, or explain the reasons why it is not possible to describe the limited range of motion in terms of degrees. Given the above, remand is necessary to ensure that VA has met its duty to assist the Veteran in these matters. 7. Entitlement to a TDIU. The claim for a TDIU is inextricably intertwined with the pending increased evaluation claims that are being remanded, and adjudication of a TDIU must be deferred until the intertwined issues are decided. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2020 to the Present. Associate copies of all treatment records from private treatment providers that have been scanned into the VISTA Imaging system with the Veteran’s claims folder. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his lumbar spine disability, LLE radiculopathy and right knee instability to include physical therapy records. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected lumbar spine disability. The examiner should provide a full description of lumbar spine disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. If it is not possible to provide a specific range of motion 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). Current Findings: Does the Veteran have forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis of the entire? a. Test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Provide range of motion (ROM) measurements. b. 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 the available evidence, then estimate the range of motion, if at all possible, during flare-ups based on the other evidence of record and the Veteran’s reports. Retrospective Findings: If it is not possible to provide a specific range of motion 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). c. Provide addendum retrospective opinions for the Veteran's service-connected lumbar spine disability to supplement the November 2019 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. d. Provide addendum retrospective opinions for the Veteran's service-connected lumbar spine disability to supplement the June 2014 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.