Citation Nr: 21067541 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-42 730A DATE: November 4, 2021 REMANDED Entitlement to an increased initial rating higher than 20 percent for degenerative disc disease of the lumbar spine with herniated nucleus pulposus is remanded. Entitlement to an increased initial rating higher than 10 percent prior to June 22, 2015, and higher than 20 percent thereafter, for radiculopathy of the left lower extremity is remanded. Entitlement to an increased initial rating higher than 10 percent prior to June 22, 2015, and higher than 20 percent thereafter, for radiculopathy of the right lower extremity is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1955 to November 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013, rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In January 2018 a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In a June 2020 decision, the Board denied entitlement to an increased initial rating higher than 20 percent for degenerative disc disease of the lumbar spine with herniated nucleus pulposus, entitlement to an increased initial rating higher than 10 percent prior to June 22, 2015, and higher than 20 percent thereafter, for radiculopathy of the left lower extremity, and entitlement to an increased initial rating higher than 10 percent prior to June 22, 2015, and higher than 20 percent thereafter, for radiculopathy of the right lower extremity. The Veteran subsequently appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2021 Order by the Court in accordance with a Joint Motion for Remand (JMR), the issues were remanded to the Board for additional development and adjudication. 1. Entitlement to an increased initial rating higher than 20 percent for degenerative disc disease of the lumbar spine with herniated nucleus pulposus 2. Entitlement to an increased initial rating higher than 10 percent prior to June 22, 2015, and higher than 20 percent thereafter, for radiculopathy of the left lower extremity 3. Entitlement to an increased initial rating higher than 10 percent prior to June 22, 2015, and higher than 20 percent thereafter, for radiculopathy of the right lower extremity The Veteran is seeking increased evaluations for his back and bilateral lower extremity radiculopathy. The Veteran was afforded an examination in June 2015. Specifically, in considering whether pain, weakness, fatigability, or incoordination significantly limited Veteran's functional ability with repeated use over time, the examiner indicated he was unable to say without speculation because the Veteran was not examined after repeated use over time. In Jones v. Shinseki, 23 Vet. App. 382, 390 (2010), the Court held that, in cases involving a speculative medical opinion, it must be clear on the record that an "inability to opine on [a medical matter] by the examiner is not the first impression of an uniformed examiner but rather an assessment arrived at after all due diligence in seeking relevant information that may have bearing on the requested opinion." The Court further explained in Sharp v. Shulkin, 29 Vet. App. 26 (2017), that a medical examiner must explain the basis for the conclusion that a non-speculative opinion regarding the functional impact of flare-ups could not be offered. Sharp, 29 Vet.App. at 33. The JMR found the Veteran's June 2015 VA examination did not comply with the Court's decisions in Jones and Sharp. The Veteran was afforded an examination in October 2019. The examining practitioner remarked passive range of motion testing could not be performed, as the test was not medically appropriate. As there is no explanation why such testing was not appropriate, judicial review was frustrated. See Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). Further, as the Veteran testified to receiving treatment at VA and private facilities, an attempt must be made to obtain outstanding records. As for bilateral lower extremity radiculopathy, as an updated examination is needed to evaluate his current back manifestations, an updated review of his radiculopathy symptoms too should be obtained. Accordingly, the Board finds an additional evaluation would be helpful in resolving the issues on appeal. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all ongoing private and VA treatment records, in particular, Vanderbilt University Medical Center and Murfreesboro VAMC. 2. Schedule the Veteran for an appropriate VA examination to evaluate the current severity of his lumbar spine condition. The Veteran's claims file should be made available for review by the examiner in conjunction with the examination. All indicated studies should be performed. The examiner is asked to ensure that the examination includes the findings required by Correia v. McDonald, 28 Vet. App. 158 (2016), Sharp v. Shulkin, 29 Vet. App. 26 (2017). 3. Schedule the Veteran for an appropriate VA examination to evaluate the current severity of his bilateral lower extremity radiculopathy. The Veteran's claims file should be made available for review by the examiner in conjunction with the examination. All indicated studies should be performed. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.