Citation Nr: 21063181 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 19-22 717 DATE: October 13, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for a back disability, characterized as degenerative disc disease with low back strain, secondary to a left ankle disability status post fracture, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU), is remanded. Entitlement to an initial rating in excess of 10 percent for left lower radiculopathy (sciatic) is remanded. Entitlement to an initial rating in excess of 10 percent for right lower radiculopathy (sciatic) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1985 to November 1988. These matters come before the Board of Veteran's Appeals (Board) on appeal of a June 2018 and September 2018 respective rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in April 2020 when they were respectively denied. The Veteran, through his attorney, thereafter, appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). Consequently, in a May 2021 Joint Motion for Remand (JMR), the Board's April 2020 decision was vacated, and these matters remanded for readjudication consistent with the Motion. The Court determined that the Board's April 2020 decision did not provide adequate reasons or bases in support of its denial of the Veteran's claims and that the Board failed to ensure that VA satisfied its duty to assist the Veteran in obtaining adequate examinations. The JMR specifically noted that a remand is warranted to ensure that the Veteran is provided with an adequate VA medical examination to address the severity of his service-connected back disability, "one that complies with this Court's decision in Sharp, supra, and Correia v. McDonald, 28 Vet. App. 158, 165 (2016) (explaining that a VA medical examination must, whenever possible, include the results of the range of motion testing for pain on both active and passive motion and weight-bearing and non-weight-bearing)." Jurisdiction for left lower radiculopathy (sciatic) and right lower radiculopathy (sciatic) increased rating claims in excess of 10 percent The JMR further noted that the Veteran's separately service-connected left lower radiculopathy (sciatic) and right lower radiculopathy (sciatic) claims are considered part and parcel of the Veteran's increased rating back disability on appeal, and as such, on remand, the Board should consider and discuss whether the Veteran is also entitled to increased ratings for the these lower extremity radiculopathy claims that were granted at respective 10 percent ratings in the September 2018 rating decision. 1. Entitlement to an initial rating in excess of 20 percent for a back disability, characterized as degenerative disc disease with low back strain, secondary to a left ankle disability status post fracture, is remanded. The Veteran was granted service connection for his back disability in a March 2012 rating decision at disability rating of 20 percent, effective December 22, 2011, the receipt date of his claim. The Veteran subsequently file a claim in June 2016, seeking a rating increase, and based on the findings of an August 2016 VA examination, the Veteran's initial 20 percent disability rating was continued in an October 2016 rating decision. The Veteran filed another increased rating claim for his back disability in June 2017. Subsequently, in a September 2018 rating decision, his increased rating claim for his back disability was again denied. The Veteran subsequently filed a notice of disagreement (NOD) and this appeal ensued. During the Veteran's prior January 2018 and August 2018 examinations which were conducted by the same examiner, even though the examiner noted daily flareups of the Veteran's back disability symptoms during these respective examinations, the examiner also reported because the examinations were not being conducted during any flareups, he was unable to state whether functional ability was significantly limited with flare-ups without resorting to speculation, and thus, range of motion measurements would be mere speculation. As such, the examiner did not discuss what type of increased symptoms the Veteran experiences during a flare-up OR quantify any additional limitation of motion during a flare-up, as required, pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). To this point, the United States Court of Appeal for Veteran's Claims (Court) has recently provided guidance for cases involving a VA examiner's description of additional limitation and functional impairment during a flare-up of symptoms currently and in the past under Sharp. In Cagliero v. Wilkie, No. 19-6895 (November 30, 2020), a non-precedential single-judge memorandum decision issued by the Court, provided that a Sharp-compliant examination (1) describes the increased symptoms during a flare-up and (2) describes the increased limitation of the affected joint (in degrees) during a flare-up. In the present case, the VA examiner did not address any of these criteria, which impacts the Veteran's appealed issue. Therefore, given the above-noted findings and the determination of the JMR, the Board finds that it must remand this issue for a new VA examination that reflects a more thorough and comprehensive evaluation of the level of severity of the Veteran's service-connected back disability, inclusive of all of the pertinent medical and lay evidence of record. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU), is remanded. The Veteran filed a formal TDIU claim in June 2017. In a June 2018 rating decision, his TDIU claim was denied by the RO on the basis that he did not meet the schedular requirement, a decision that the Veteran did not appeal. Although the denial of his formal TDIU claim became final in June 2018, TDIU was subsequently raised on the record, pursuant to Rice, as noted in the prior June 2020 Board decision. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (CAVC) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Board denied the Veteran's TDIU claim in that decision, which the Veteran also appealed to the Court. Pursuant ot the agreement of the parties in the above-referenced JMR, the Court has determined that a remand is warranted for the Veteran's TDIU claim, which should discuss and readjudicate whether the evidence supports entitlement to an award of TDIU. Specifically, that such remand should address whether there is sufficient evidence to determine if Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities, including a referral for consideration of entitlement on an extraschedular basis. The Board notes that the Veteran has not met the schedular requirements since his combined rating disability evaluation is currently at 50 percent, for his service-connected disabilities, including his back disability and bilateral lower extremity radiculopathy, which are also being remanded in this decision. Further, the Board finds that the Veteran's TDIU claim is currently inextricably intertwined with the other issues being remanded in this decision. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). Therefore, consideration of the Veteran's TDIU claim must be deferred pending readjudication of the other remanded issues. 3. Entitlement to an initial rating in excess of 10 percent for left lower radiculopathy (sciatic) is remanded. 4. Entitlement to an initial rating in excess of 10 percent for right lower radiculopathy (sciatic) is remanded. Also pursuant to the agreement of the parties in the above-referenced JMR, it was determined that on remand the Board should consider the evidence referenced in the September 2018 rating decision that was the basis for separate 10 percent ratings for the Veteran's left lower radiculopathy (sciatic) and right lower radiculopathy (sciatic) and evaluate whether the Veteran may be entitled to increased ratings. Such evidence includes the August 2018 examination, which the Court has found to be inadequate. Consequently, these matters must also be remanded for a new VA examination, in conjunction with the Veteran's back disability examination, that also reflects a more thorough and comprehensive evaluation of the level of severity of the Veteran's service-connected left and right lower radiculopathy. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner (other than the August 2018 VA examiner) to evaluate current findings AND retrospective assessments for the entirety of the appeal period (July 19, 2016 to the present), for the Veteran's back disability and his associated radiculopathy of the bilateral lower extremities. The claims file, including all pertinent VA and private medical reports of record and a copy of this Remand must be made available to and reviewed by the examiner prior to conducting this examination, and he/she should note that such review of the evidence was conducted. The examiner should report the extent of the Veteran's disabilities in accordance with VA rating criteria and must fully describe the frequency and severity of ALL manifestations of the Veteran's service-connected back and bilateral lower extremity radiculopathy disabilities. With regard to the Veteran's back disability, range of motion testing should be accomplished and reported for the thoracolumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. The examiner should fully report functional impairment due to incoordination, weakened movement, excess fatigability, pain, or flare-ups in terms of additional degrees of limitation of motion. The examiner is advised that the Veteran is competent to report limitation during any flare-ups. All neurological manifestations should be included in the examination report. *Regarding the requested findings during a flare-up of symptoms, if the current examination is not being conducted during a flare-up of the Veteran's back symptoms, the VA examiner is requested to retrospectively convey any increased symptomatology and limited motion (the latter, expressed in degrees) during flare-ups of symptoms throughout the appeal period, based on the Veteran's statements and other medical evidence of record showing increased pain and/or limitation, to include within his VA and/or private treatment records. The examiner should also discuss any findings pertinent to any functional or occupational limitation of the Veteran's currently service-connected disabilities (i.e. status post fracture left ankle with internal fixation, limitation of motion and degenerative arthritis; right lower radiculopathy (sciatic); left lower radiculopathy (sciatic); degenerative disc disease with low back strain) and offer an opinion as to the extent of such limitations. A complete rationale must be included for all proffered opinions. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without resorting to mere speculation, this should be so stated along with supporting rationale. 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. It must be clear that the inability to provide an opinion is predicated on lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Ensure substantial compliance with all the directives contained in this remand. If the report is deficient in any manner, the Agency of Jurisdiction (AOJ) must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ must readjudicate the issues remaining on appeal, including the inextricably intertwined TDIU, to include, if necessary, on an extraschedular basis. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.