Citation Nr: 21066052 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-01 122 DATE: October 28, 2021 REMANDED From August 6, 2010 to December 9, 2014, entitlement to a rating greater than 20 percent for a lumbar disorder is remanded. From February 1, 2015 to February 18, 2021, entitlement to a rating greater than 20 percent for a lumbar disorder is remanded. From February 19, 2021, entitlement to a rating greater than 40 percent for a lumbar disorder is remanded. Entitlement to service connection for a urinary disorder, as secondary to service-connected lumbar disorder, is remanded. REASONS FOR REMAND The Veteran had active service from June 1965 to January 1993. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2011 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). As a preliminary matter, the Veteran had lumbar surgery in December 2014. Because the AOJ, in June 2020, awarded a temporary total evaluation from December 10, 2014 to January 31, 2015 for convalescence from the surgery, the Board does not need to address this period. Lumbar Disorder The Veteran claimed an increased rating for his lumbar disorder on August 6, 2010. The AOJ denied his claim in June 2011, and he appealed. The Board previously considered this appeal in October 2018 and January 2021, and it remanded both times for additional development. Remand is again warranted. VA has examined the Veteran four times during the appeal period March 2011, August 2019, February 2021, and July 2021. Based on the 2021 examinations, the AOJ increased the Veteran's lumbar disorder rating to 40 percent disabling, effective February 19, 2021. In January 2021, the Board determined that the August 2019 examination did not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017) or Correia v. McDonald, 28 Vet. App. 158 (2016), so it ordered a new examination. For the Veteran's understanding, in Sharp, the United States Court of Appeals for Veterans Claims 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 or repeated use 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. Also, in Correia, the United States Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Specifically, examinations should report all ranges of motion in terms of the Veteran's active motion, passive motion, weight-bearing motion, and non-weight-bearing motion. The Board, neither in October 2018 nor January 2021, addressed the adequacy of the March 2011 examination. At that examination, the Veteran was diagnosed with lumbar spine disorder. The examiner noted that the Veteran's thoracolumbar range of motion was: forward flexion (55 degrees); extension (25 degrees); left lateral flexion (30 degrees); left lateral rotation (30 degrees); right lateral flexion (25 degrees), and right lateral rotation (20 degrees). The total range of motion was 185 degrees. The examiner found the Veteran had pain following repetitive motion testing, but there was no additional limitation in range of motion. At the examination, the Veteran reported he experienced a "severe" flareup every 2-3 weeks which lasted an hour. The examiner also noted "EXTENT OF ADDITIONAL LIMITATION OF MOTION OR OTHER FUNCTIONAL IMPAIRMENT DURING FLARE-UPS: Additional limitation to a significant degree. "When my back pain flares up, I have to stop what I'm doing and take care of my back." The examiner did not estimate the reduction in range of motion, if any, due to flares, nor did he discuss why there was no estimate. Accordingly, the Board finds the March 2011 examination does not comply with Sharp. The 2021 examinations comply with Correia and Sharp. However, because a retrospective opinion is not in the claims file, remand is warranted to determine to what extent, if any, these flareups limited the Veteran's range of motion for his lumbar disorder and to ensure Sharp compliance throughout the 11-year period on appeal. Additionally, the Board notes that, VA, through the Veterans Health Administration (VHA), authorizes eligible Veterans to receive health care from a community provider rather than waiting for a VA appointment or traveling to a VA facility. This authorization includes the former Veterans Choice Program and current Veterans Community Care Program. Here, the Board observes that VHA has approved the Veteran for multiple Community Care Program referrals. These referrals, as relevant to the lumbar disorder, include to the neurosurgery department at the University of Florida healthcare system beginning in 2020. Notations to these referrals and records generated from them, but not the records themselves, are cited in a CAPRI file uploaded on July 13, 2021. Therefore, remand is necessary to attempt to obtain these records. Urinary Disorder Note 1 to the General Rating Formula for Diseases and Injuries of the Spine directs that "any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment" be evaluated "separately under an appropriate diagnostic code." An October 30, 2020 VA treatment record, found in the CAPRI file uploaded on March 19, 2021 to the claims file, states: Pt identified x2.Pt returns for 12 mo f/u on his past hx of urine retention 12-12-14 following L spine surgery with successful voiding trial and a past hx of e PSA. On terazosin 10 mg hs and continues to void without problem.w nocturia 4-5 x. His psa was increased to 7.82 on 4/17/17 and the left lobe prostate nodule was quite firm and suspicious of a cancer. He had TRUS Bx on 11/3/17 that showed: BPH no inflammation. His psa is reduced to 4.30 on 10/3/19 and recent 5.02 on 10/2/20. He has no sx of prostatitis. I explained finasteride which he would like to try. Similar treatment records noting "urine retention" following the December 2014 lumbar surgery appear in the same electronic file. Remand is necessary to determine the nature and etiology of this urine retention vis-à-vis the lumbar disorder. The matters are REMANDED for the following action: 1. Ask the Veteran to identify which of his Community Care Program-approved providers have treated him for his lumbar disorder. Ask him to provide the AOJ with the addresses and phone numbers of these facilities. If the Veteran responds, attempt to obtain all treatment records available from these facilities. 2. Independent of Directive #2, identify all records generated through the Veterans Choice Program or Veterans Community Care Program that VHA already possesses relevant to treatment of the Veteran's lumbar disorder. Once identified, arrange for these documents to be made viewable in VBMS and/or added as separate files. In short, the Board wants to ensure that it can view all available records, not simply a notation that private records have been scanned into a VHA database to which the Board does not have access. 3. Schedule the Veteran for a VA examination to determine the nature and severity of his lumbar disorder. To comply with Sharp v. Shulkin, 29 Vet. App. 26, (2017), the examiner is asked to describe whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. In addition to the customary examination and Sharp instructions, the examiner must also address the following: a) For the Sharp element of the examination, the examiner must attempt to estimate the loss in range of motion for the lumbar disorder from August 2010 to present. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disability. In doing so, the examiner's opinion should be based on an estimate derived from information procured from relevant sources, including the Veteran's lay statements after he is asked to describe functional limitation, including statements made during the March 2011, August 2019, February 2021, and July 2021 examinations of record. 4. A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 5. Schedule the Veteran for an examination to determine the nature and etiology of the urinary disorder raised by the record. In addition to the customary examination, the examiner should opine: a) Is it at least as likely as not (50 percent probability) that the Veteran's lumbar disorder, to include his December 2014 lumbar surgery, CAUSED his "urine retention," as detailed in an October 30, 2020 VA treatment record? Why or why not? (Continued on the next page) b) Is it at least as likely as not (50 percent probability) that the Veteran's lumbar disorder, to include his December 2014 lumbar surgery, AGGRAVATES his "urine retention," as detailed in an October 30, 2020 VA treatment record? Why or why not? A detailed explanation is required to support the opinion. A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If the inability to opine is due to the fact that the examiner lacks the expertise to render such an opinion, or due to the fact that some additional testing or information is needed, and possibly available, that would permit such an opinion, the examiner should clearly and specifically state so, and, if applicable, the examiner should also state precisely what additional testing or information is needed in order to render the requested opinion. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.