Citation Nr: 21069390 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 12-10 727 DATE: November 18, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for the service-connected right wrist cyst is remanded. Entitlement to an initial rating in excess of 20 percent for the service-connected chronic lumbar strain prior to February 25, 2015, and in excess of 40 percent thereafter is remanded. Entitlement to an initial compensable disability rating for the service-connected left lower extremity radiculopathy of the anterior crural nerve (femoral nerve) prior to December 29, 2016, and in excess of 20 percent thereafter is remanded. Entitlement to an initial compensable disability rating for the service-connected left lower extremity radiculopathy of the external popliteal nerve (common peroneal nerve) with foot drop prior to December 29, 2016, and in excess of 40 percent thereafter is remanded. Entitlement to an initial compensable disability rating for the service-connected right lower extremity radiculopathy of the anterior crural nerve (femoral nerve) prior to December 29, 2016, and in excess of 20 percent thereafter is remanded. Entitlement to an initial compensable disability rating for the service-connected right lower extremity radiculopathy of the external popliteal nerve (common peroneal nerve) prior to December 29, 2016, and a rating in excess of 20 percent thereafter is remanded. FINDING OF FACT For the entire appeal period, the Veteran's service-connected disabilities are not shown to have precluded him from obtaining or maintaining a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1984 to November 1987 and from January 1991 to March 1991. These matters initially come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. Following a November 2014 Board remand, a June 2016 Board decision denied an initial rating in excess of 20 percent for the chronic lumbar strain prior to February 25, 2015, and in excess of 40 percent from that date, granted an increased initial rating of 10 percent for a right wrist cyst, and denied a rating in excess of 10 percent for this wrist disability. The June 2016 Board decision also remanded the matters of entitlement to separate evaluations/secondary service connection for right and left lower extremity radiculopathy. The Veteran appealed the June 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In May 2017, the Court granted a Joint Motion for Partial Remand (JMPR). In the May 2017 Order, the Court vacated and remanded the portions of the Board's June 2016 decision that denied an initial rating in excess of 20 percent for the chronic lumbar strain prior to February 25, 2015, and in excess of 40 percent from that date, and denied a rating in excess of 10 percent for a right wrist cyst for compliance with instructions provided in the JMPR. In September 2017, October 2019, and July 2020, the Board remanded the various issues on appeal to the RO for further development. Entitlement to a total disability rating based upon individual unemployability (TDIU) By way of background, a claim for entitlement to a TDIU was raised by the record as part of the Veteran's initial increased rating claims for his service-connected lumbar strain and right wrist cyst disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board will consider whether a TDIU is warranted from December 22, 2006, the date the Veteran was granted service connection for these disabilities. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from securing and following "substantially gainful employment" consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16(a), as in this case for a portion of the appeal period, he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected condition. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, the Veteran is service-connected for the following disabilities: (1) chronic lumbar strain (rated as 20 percent disabling from December 22, 2006, and 40 percent disabling from February 25, 2015); (2) left lower extremity radiculopathy of the common peroneal nerve with foot drop (rated as 40 percent disabling from December 29, 2016); (3) right hand focal neurologic symptoms (rated as 30 percent disabling from October 1, 2010); (4) right lower extremity radiculopathy of the common peroneal nerve (rated as 20 percent disabling from December 29, 2016); (5) right lower extremity radiculopathy of the femoral nerve (rated as 20 percent disabling from December 29, 2016); (6) left lower extremity radiculopathy of the femoral nerve (rated as 20 percent disabling from December 29, 2016); and (7) a right wrist cyst (rated as 10 percent disabling). The Veteran is in receipt of a combined 30 percent rating from December 22, 2006, 50 percent rating from October 1, 2010, 60 percent rating from February 25, 2015, and 90 percent rating from December 29, 2016. As such, the Veteran meets the schedular criteria for a TDIU from December 29, 2016. After review of the evidence, the Board finds that entitlement to a TDIU, as well as referral for extraschedular consideration for the appeal period prior to December 29, 2016, where the Veteran does not meet the schedular criteria, is not warranted. In this regard and upon careful review of the record, the Board concludes that the Veteran has maintained full time employment for nearly the entire appeal period that was more than marginal and, thus, finds that his service-connected disabilities have not precluded him from obtaining or maintaining substantially gainful employment. First, the Board notes that the Veteran has been given the opportunity to provide his employment information to VA and was specifically requested to submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, as well as tax return forms for the years he claims he is unable to obtain or maintain substantially gainful employment. See November 2019 VA notification letter. Despite this attempt for the Veteran to clarify his employment status, including whether he missed work or received reasonable accommodations as due to his service-connected disabilities, to date, the Veteran has not returned or completed this form nor otherwise provided further employment history. There is also no indication that the form was returned as undeliverable. The Board notes that information on this form is pertinent to the Veteran's TDIU claim as the form gives the Veteran the opportunity to report his employment status and how much time, if any, he missed from work. The Board also points out that the Court has held that "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). By reasonable extension of this precept, this includes returning a completed VA Form 21-8940. As such, given that the Veteran has been provided opportunities to clarify his employment history, and lack of response thereof, a remand to clarify such is unnecessary in this case and would serve only to delay the claim. Next, the Board does not dispute that the Veteran's service-connected disabilities affect his occupational abilities. For example, the Veteran has reported to VA examiners that his service-connected right-hand disabilities impact his ability to write, lift, and type, while his service-connected lumbar strain and radiculopathy disabilities impact his ability to engage in prolonged standing and walking. See e.g., March 2021 VA examinations. However, the limitations with his service-connected disabilities either alone or in aggregate do not result in an inability to maintain and secure substantially gainful employment as the evidence suggests that the Veteran maintained employment throughout the appeal period. In this regard, the medical evidence of record suggests that the Veteran was employed throughout the appeal period but took some time off as a result of his service-connected lumbar strain. For instance, and turning to the evidence of record, at the December 2009 Board hearing, the Veteran testified that he currently worked for Detroit Edison and had taken some time off work in 2007 under the Family and Medical Leave Act. The evidence of record corroborates these reports as a December 2006 DTE Energy Family Medical Leave Eligibility Status Form reflects that the Veteran indicated his leave was expected to begin on January 3, 2007, and to end on or about January 31, 2007, while January 2007 medical forms associated with the Family and Medical Leave Act reflect that the Veteran would have to work intermittently or work less than a full schedule from December 21, 2006, through January 3, 2007, and from January 3, 2007, through March 8, 2007, as a result of his lumbar spine disability. A subsequent August 2007 VA back examination also reflects that the Veteran's medical history includes low back pain that affects his work, but the VA examiner found, at the time of the examination, that there was no impairment of daily occupational activities due to his lumbar strain disability. Thereafter, an April 2008 private treatment record noted that the Veteran was currently employed as a warehouse worker, which was physical in nature, but was currently off work because of his back pain. A July 2008 private treatment record also reflects that the Veteran was employed by DTE energy and that his back pain became worse in April 2008 with lifting at work while an October 2010 private treatment record reflects that the Veteran had back pain with radicular symptoms and had significant difficulty going to work. The October 2010 treatment record also reflects that he was given disability from employment for the following two weeks. In November 2010, the Veteran had not yet returned to work and reported that his employer would not take him back with any restrictions, but his private provider indicated he may be able to resume employment in about a week. See November 2010 private treatment record. By December 2010, the Veteran had significant improvement in his back pain and had returned to work. See December 2010 private treatment record. Thereafter, a September 2013 work disability claims management form, signed by a private physician, reflects that the Veteran was not totally disabled from working due to his back pain and could return to work with restrictions. Additionally, at the February 2014 Board hearing, the Veteran reported that he was employed at the time, working at a computer-based workstation. See February 2014 Board hearing transcript. He further testified that he had previously been off work for extended periods of time as a result of his service-connected back disability. See id. The subsequent VA examinations of record also indicate that the Veteran maintained employment but took some leave due to his back disability. For example, the February 2015 VA examiner indicated that the Veteran was employed full time at Detroit Edison, which consisted of physical and nonphysical duties. At the time of that examination, the Veteran reported that he may need to take off up to three to six days a month when his back pain flares up. The October 2017 VA wrist conditions examination reflects that the Veteran's job required him to frequently use the computer, which affected his right-hand disability while the December 2017 VA back conditions examination reflects that the Veteran worked in a warehouse, was currently on leave due to his back disability, and lost two to four weeks of work time in the last year. A January 2018 VA treatment record also reflects that the Veteran was employed. Significantly, the January 2019 VA skin diseases examination shows that the Veteran worked full time at a warehouse for the past 20 years. This above evidence indicates that the Veteran was capable of obtaining and maintaining gainful employment as it shows he maintained employment throughout the appeal period. Additionally, a review of the claims file is negative for any evidence, to include any lay statements from the Veteran, suggesting his employment was marginal in any manner. There is no evidence showing his income was at or below the poverty threshold for one person as determined by the United States Department of Commerce. There is also a lack of an indication that he was working in a protected environment. Thus, the Board finds that his employment during the appeal period is more than marginal in nature. The Board acknowledges that the evidence shows the Veteran took leave from work due to his service-connected lumbar strain disability. However, the evidence also shows that despite this leave, he maintained his employment and was not fired or had to resign as a result of his disability. Indeed, the January 2019 VA examination indicates he maintained his employment for the past 20 years, which does not reflect an inability to secure and maintain substantially gainful employment. The Board also acknowledges that the October 2010 VA examination reflects that the Veteran's usual occupation was in supply that that he retired in August 2010 and acknowledges the May 2012 statement from the Veteran's representative that the Veteran had not worked since August 2010 largely due to his back condition. The Board finds this evidence, however, is inconsistent with the other evidence of record, listed above, indicating that the Veteran did not retire from his job and, instead, continued to maintain his employment. As this evidence is inconsistent with the other evidence of record and given the lack of clarification from the Veteran concerning his employment history, the Board assigns less probative weight to this evidence. As such, the Board finds that regardless of whether the Veteran receives increased ratings for the issues remanded herein in this Board decision, the evidence does not show that he was unable to obtain or maintain substantially gainful employment during the appeal period. To the extent that his service-connected disabilities affected his employability, the schedular ratings assigned for his various disabilities compensate him for such impairment. Indeed, disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. Accordingly, entitlement to a TDIU and referral for consideration of a TDIU on an extraschedular basis is not warranted. Therefore, the Veteran's claim for TDIU is denied as the preponderance of the evidence is against the claim. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 1. Entitlement to an initial rating in excess of 10 percent for a right wrist cyst Unfortunately, the Board finds that a remand is warranted for the Veteran's claim as there has not been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, in order to assess the severity and symptomatology of the Veteran's service-connected right wrist cyst, the July 2020 Board decision remanded the Veteran's claim specifically for an examination of his wrists, hands, and fingers. Although the Veteran underwent a hand and fingers VA examination, peripheral nerves VA examination, and scars VA examination, the Veteran was not afforded a VA wrist conditions examination. This is significant as the March 2021 VA examiner found that the Veteran's cyst affected his ability to flex, twist, and turn knobs, and resulted in decreased range of motion with repetitive actions of the right hand and swelling at the wrist with repetitive motions. Additionally, as the Veteran is now service connected for right hand focal neurologic symptoms, it is unclear whether any limitation of motion is attributable to the Veteran's right-hand cyst and/or focal neurological symptoms. Accordingly, and for the above reasons, a remand is warranted for an examination and addendum opinion. 2. Entitlement to an initial rating in excess of 20 percent for the chronic lumbar strain prior to February 25, 2015, and in excess of 40 percent thereafter; and entitlement to initial increased ratings for the service-connected right and left lower extremity radiculopathy of the femoral and common peroneal nerves Unfortunately, the Board finds that the last VA back examination of record is again inadequate to decide the Veteran's claim and necessitates remand for an adequate examination. In this regard, the Veteran was most recently afforded a VA back examination in March 2021 where the examiner indicated that the Veteran did not report experiencing any functional impairment, functional loss, or flare-ups of his low back, and found that the Veteran's disability did not impact his ability to perform any time of occupational tasks (such as standing, walking, lifting, sitting). However, at the end of the examination report, in the remarks section, the VA examiner noted that the Veteran admitted to pain with excess activity, lifting, prolonged standing and walking, and that he is not able to stand for greater than 15 to 20 minutes without pain. The VA examiner did not provide any explanation for this discrepancy in findings within the examination report. Moreover, the examiner indicated that pain, fatigability, weakness, lack of endurance, and incoordination caused functional loss with range of motion after observed repetitive use (after three repetitions) but found that pain, fatigability, weakness, lack of endurance, and/or incoordination did not cause functional loss or limit functional ability with repeated use over time. These findings are also contradictory and there is no explanation for this inconsistency within the examination report. Furthermore, although the July 2020 Board remand requested that the VA examiner address the fact that the Veteran reported he missed work up to three to six days a month during flare-ups of the back in determining any degree of functional loss during flare-ups and with repeated use over time, the March 2021 VA examiner did not address this report. Even more, the March 2021 VA examiner did not provide the requested findings/responses concerning associated neurologic impairments as requested to do so in the July 2020 Board remand directives. See Stegall, 11 Vet. App. at 271. The Board acknowledges that VA obtained an addendum opinion in September 2021, by a different medical professional, in an attempt to clarify the several problems with the findings from the March 2021 VA back examination. However, the September 2021 VA addendum opinion does not provide clarification as to all the contradictory findings in the March 2021 VA examination and, instead, appears to rely solely on the findings from the March 2021 examination. Additionally, the addendum opinion is also internally inconsistent. For example, while the September 2021 addendum opinion reflects a finding that the Veteran does not have any current neurologic manifestations of his chronic lumbar strain, to include radiculopathy, because the March 2021 VA examiner indicated that the Veteran had no other signs or symptoms of radiculopathy (despite the fact that the March 2021 VA examination also reflects a finding that the Veteran has bilateral sciatic nerve involvement), the addendum opinion also notes that the most recent March 2021 peripheral nerves examination reflecting bilateral lower extremity radiculopathy most accurately reflects the Veteran's condition. Given the above inadequacies, another VA examination is warranted to accurately assess the Veteran's disability. As to the Veteran's radiculopathy claims, his increased rating claims for his right and left lower extremity radiculopathy are intertwined with his lumbar spine initial rating claim as that development may provide relevant evidence as to the Veteran's radiculopathy claims. Additionally, although the Veteran's bilateral lower extremity radiculopathy of the femoral and common peroneal nerves were identified at the December 29, 2016, VA examination, the evidence reflects diagnoses of lower extremity radiculopathy prior to that date. See July 2008 private treatment record (reflecting an impression of right lumbar radiculopathy); October 2010 private treatment record (reflecting the Veteran was diagnosed with acute left lumbosacral radiculopathy). However, it is not clear from the record which nerve and/or nerves were impacted prior to December 29, 2016, and the symptomatology of such. Thus, the Board finds that a retrospective VA opinion is warranted to attempt to address the Veteran's radiculopathy of the bilateral legs for the appeal period prior December 29, 2016. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records relevant to the Veteran's claims on appeal. The last VA treatment of record is dated May 2021. 2. Provide the Veteran with another opportunity to identify and/or submit any outstanding private records relevant to his claims, to include his non-VA treatment for his lumbar strain disability. After obtaining any necessary authorization from the Veteran, any identified, outstanding records should be obtained. 3. Then, as part of scheduling the Veteran for VA examinations below, send the Veteran and his representative a letter with the date and time of his scheduled examinations and include a copy of this letter in the claims file. The letter must detail the consequences of the Veteran's failure ot report for the examinations. 4. Schedule the Veteran for a VA wrist conditions examination in relation to the Veteran's right wrist cyst claim. 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. The examiner must review the Veteran's claims file prior to the examination. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. 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). In so doing, the examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. 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). The examiner should also respond to the following: (a) The examiner should clearly identify all disabilities of the right wrist during the appeal period and the symptoms related to any identified disabilities. (b) If limitation of motion of the wrist is found, is it independently attributable to the Veteran's service-connected right wrist cyst, service-connected right hand focal neurologic symptoms, or is it attributable to some combination of conditions in such a way that independent attribution cannot be identified? A clearly stated rationale for any opinion offered should be provided. In this regard, a detailed discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. 5. Schedule the Veteran for a VA examination with an appropriate medical provider, other than the last VA back examiner in March 2021, to determine the current severity of the Veteran's service-connected chronic lumbar strain. 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. The examiner should respond to the following: (a) The examiner must test the Veteran's range of motion on BOTH active and passive motion, on weight-bearing and non-weight-bearing, if possible. (b) If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. 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 so in the report. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran's disability. The examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of his back and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion ESTIMATING any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (d) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation -whether based on lack of expertise, insufficient information, or unprocured testing -of the individual examiner. (e) In addition to the findings reported in the examination report, the examiner MUST ALSO ADDRESS the Veteran's report that he misses work up to three to six days a month during flare-ups of back pain in relation to whether the Veteran's disability causes any functional limitations, including any functional loss during flare-ups and with repeated use over time. (f) In addition to the findings reported in the examination report, the examiner MUST ALSO PROVIDE AN OPINION concerning whether the Veteran has any other neurologic manifestations associated with his lumbar spine disability, to include sensory loss, radiculopathy, bowel/bladder, and/or erectile dysfunction. For any neurological impairment found to be associated with the service-connected lumbar spine disability, other than the Veteran's bilateral lower extremity radiculopathy which will be addressed in a separate requested opinion, the examiner is asked, to the extent possible, to identify the date of onset and the severity thereof. The examiner should accept as fact that service connection for left and right lower extremity femoral and common peroneal nerve radiculopathy has been established. In making these findings, the examiner should consider and address as appropriate the Veteran's reports that he has bladder/bowel incontinence and impotence as well as the October 2010 VA examination reflecting a history of erectile dysfunction. A rationale should accompany any requested opinion. 6. Obtain a retrospective opinion addressing the onset and severity of the Veteran's bilateral lower extremity radiculopathy. The claims file, to include a copy of this Remand, should be available to and be reviewed by the examiner. Based on a review of the record, the examiner is asked to respond to the following: For the appeal period prior to December 29, 2016 (and beginning December 22, 2006), the examiner should provide a retrospective opinion determining the likely onset date of the Veteran's left and right lower extremity radiculopathy, to include the specific nerve(s) involved and degree of impairment of the nerve (that is whether it is mild, moderate, moderately severe, or severe in nature), if feasible. The examiner should consider and address as appropriate (1) the April 2008 private treatment record reflecting a diagnosis of lumbar radiculitis; (2) the July 2008 private treatment record reflecting an assessment of right lumbar radiculopathy; (3) the October 2010 private treatment record reflecting the Veteran was diagnosed with acute left lumbosacral radiculopathy; and (4) the October 2010 VA examination reflecting the Veteran's reports of lower back pain with radiation to both legs. The examiner should also consider the Veteran's reports of symptoms and history documented in the claims file. The absence of a documented diagnosis in the VA examinations prior to December 29, 2016, should not, alone, serve as the sole basis for a negative opinion. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.