Citation Nr: 21062846 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-50 786 DATE: October 12, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent prior to January 14, 2020; in excess of 20 percent from January 14, 2020 to December 21, 2020; and in excess of 40 percent from December 22, 2020, forward, for lumbosacral degenerative arthritis, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1984 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision. In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In May 2020 and April 2021, the Board remanded the issues above for additional development. Unfortunately, the issues must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the issues, so the Veteran is afforded every possible consideration. 1. Entitlement to a disability rating in excess of 10 percent prior to January 14, 2020; in excess of 20 percent from January 14, 2020 to December 21, 2020; and in excess of 40 percent from December 22, 2020, forward, for lumbosacral degenerative arthritis, is remanded. Following the Board's April 2021 remand, the Veteran was afforded a June 7, 2021 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The examination report provides that the Veteran has flare-ups that occur four to five times per week that last approximately two to three hours per episode. His flare-ups are caused by activity, such as walking and are alleviated by rest, ice, and Tylenol. He also has shooting pains down his legs that occur intermittently during flare-ups. The June 2021 VA examination report states that based on a review of the evidence of record, including the Veteran's lay testimony, available medical records, and examination of the Veteran, the level of additional loss of function or motion regarding repetitive use or flare-up varies with his level of pain. The examination report provides that there is no persistent evidence of record, considered to be valid or reproducible for ratings purposes that indicates a loss of function during these conditions. The Veteran states the level of additional loss of function or motion concerning repetitive use or flare-up varies with his level of pain. The Veteran was also afforded a June 8, 2021 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The examination report states that the Veteran has constant pain that increases with any movement. The examination report also provides that the Veteran does not report flare-ups. The examination report does not contain any further information concerning the impact Veteran's flare-ups on his functional ability or additional loss of range of motion. The Board finds that a new examination is warranted to determine the current severity of the Veteran's lumbosacral degenerative arthritis as the June 7, 2021 and June 8, 2021 examination reports are inadequate as they do not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp, 29 Vet. App. at 32. VA examiners are also required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran's own statements. Id. at 34-35. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. The June 7, 2021 examination report is inadequate because it does not contain necessary information needed to comply with Sharp concerning additional loss of motion during flare-ups. While the examiner stated that additional loss of function or motion regarding repetitive use or flare-up varies with his level of pain, the examiner failed to provide an estimation of such additional loss of range of motion. It is not apparent why the examiner could advise of varying levels of additional loss of range of motion during a flare-up based on pain levels and not estimate corresponding additional loss of range of motion. Further, the above issue was remanded by the Board, in part, to obtain a retrospective medical opinion concerning an estimation of the additional degrees of loss of range of for the Veteran's lumbosacral degenerative arthritis prior to June 15, 2020. The June 2021 examination report states that it is impossible to estimate the degrees of additional range of motion loss during flare-ups or after repetitive use for the time in question without resorting to speculation. The examination report further provides that the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given current medical science and the known facts, including, but not limited to the Veteran's own statements. The Board finds that while the above issue is being remanded for other reasons, further efforts should be made to obtain a retrospective medical opinion regarding an estimation of the additional degrees of loss of range of for the Veteran's lumbosacral degenerative arthritis prior to June 15, 2020. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). Lastly, the Veteran's recent VA treatment records demonstrate that he receives private acupuncture treatment from Backonpoint Acupuncture for his back pain. The Veteran's claims folder does not contain these private treatment records. Therefore, a remand is required to allow VA to obtain authorization and request these records. 2. Entitlement to a TDIU rating due to service-connected disabilities is remanded. Given that final adjudication of the Veteran's claim for an increased disability rating could result in earlier eligibility for a TDIU rating or result in additional evidence speaking to the Veteran's employability, the issue of entitlement to a TDIU rating is inextricably intertwined with the claim being remanded herein, and the issues should be considered together. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the issue of a TDIU rating must be remanded as well. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2021 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for Backonpoint Acupuncture. Make two requests for the authorized records from Backonpoint Acupuncture, unless it is clear after the first request that a second request would be futile. 3. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral degenerative arthritis. (a.) 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. (b.) 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). (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's lumbosacral degenerative arthritis (d.) 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 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). (e.) The examiner must provide a retrospective medical opinion, as best as can be ascertained from the Veteran's self-reports as well as from clinical records and other evidence, including VA examination reports. The retrospective medical opinion must estimate any additional degrees of limited motion caused by functional loss during a flare-up for the time period prior to June 15, 2020. (Continued on the next page) The examiner should specifically consider the April 2015 VA examination report wherein the Veteran stated that he had flare-ups approximately three times a week, which last for the entire day. To alleviate flare-ups, he stated that he sat in his "easy chair" and used ice, Ibuprofen, and a TENS unit. In terms of function, he stated that flare-ups immobilized him. With flare-ups, the Veteran reported that he was "grabbing the wall," could not stand long, and could not sit straight up. If there is any medical reason to accept or reject the Veteran's description of his flare-ups, this should be noted. If it is not possible to provide an estimation 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). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.