Citation Nr: 21004997 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-00 359 DATE: January 28, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine disability is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to August 2016, and 20 percent thereafter, for service-connected left lower extremity radiculopathy is remanded. Entitlement to an initial compensable disability rating prior to August 2016, and in excess of 10 percent thereafter, for service-connected right lower extremity radiculopathy is remanded. REASONS FOR REMAND Th Veteran served on active duty in the United States Army from January 1973 until February 1993. In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In March 2020, the Board remanded this appeal for further development to include VA medical examinations to ascertain the current severity of the Veteran’s service-connected lumbar spine and lower extremity radiculopathy disabilities. The examiner was specifically instructed to attempt to identify when right lower extremity radiculopathy first manifest. There has not been substantial compliance with the Board’s prior remand instructions and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine disability is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent prior to August 2016, and 20 percent thereafter, for service-connected left lower extremity radiculopathy is remanded. 3. Entitlement to an initial compensable disability rating prior to August 2016, and in excess of 10 percent thereafter, for service-connected right lower extremity radiculopathy is remanded. The Board cannot make a decision because the medical opinions obtained subsequent to the prior remand are inadequate. The October 2020 examination is inadequate because the examiner did not adequately address the effect of pain on range of motion. The range of motion findings reported by the examiner on objective testing noted pain on flexion, extension and lateral flexion, but the examiner did not quantify the additional loss of motion due to pain. The range of motion findings reported were identical. The claim is remanded for an examination that considers the effect of pain and flare-ups. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The related neurological examination is also inadequate because the examiner did not address when the right lower extremity radiculopathy was first shown. The examiner only noted the initial date of the diagnosis. The Board requested that the examiner review the records and determine when it was first manifest, which could be prior to the date of official diagnosis. The opinion on remand address when bilateral lower extremity radiculopathy disabilities first manifest. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2020 to the present. 2. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability and related neurological manifestations. 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. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). Additionally, 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 why. For the lower extremity radiculopathy, the examiner must answer the following, based on a review of the record: (a.) Identify when the right lower extremity radiculopathy disability first manifest? (b.) When did the Veteran’s left lower extremity radiculopathy disability first manifest? In answering these questions, the examiner should consider, and address as appropriate, the following: (i) private treatment records from Georgia Spine and Neurosurgery Center dated May 2011 that show left paraspinous pain and left posterior leg pain and dated June 2009 that show mild numbness above the knees; (ii) private treatment records from Interventional Rehabilitation of South Florida dated May 2005 through October 2006 and show low back pain radiating to hip and leg regions bilaterally, pain in lower back radiating to the buttocks, pain in the low back that radiates into both of his knees, and burning, pain, and tingling at his right lower back, posterior, thigh, and knees. All opinions must be supported by complete rationale. If a requested opinion cannot be provided without resort to speculation, the examiner should say why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, 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.