Citation Nr: 21070092 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 12-22 811 DATE: November 23, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent for low back strain with spondylosis, prior to May 11, 2011, is remanded. Entitlement to an initial evaluation in excess of 20 percent for low back strain with spondylosis, on or after May 11, 2011, is remanded. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1999 to February 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for a low back strain with spondylosis and radiculopathy of the bilateral lower extremities. The RO assigned a separate 10 percent evaluation for each disability effective from May 11, 2011. In an August 2012 rating decision, the RO determined that there was clear and unmistakable error (CUE) in the September 2011 rating decision with regard to the to the grant of service connection for low back strain with spondylosis, and assigned an earlier effective date of February 27, 2001. A 10 percent evaluation was assigned as of that date, and a 20 percent evaluation was granted effective May 11, 2011. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2013. A transcript is of record. In a December 2017 rating decision, the RO granted an earlier effective date of February 27, 2001, for the grant of service connection for radiculopathy of the left and right lower extremities. A 10 percent evaluation was assigned for each disability since that date. The Board remanded the case in December 2014, February 2020, and September 2020. The case has since been returned to the Board for appellate review. Following the September 2020 Board remand, the Veteran was afforded additional VA examinations for his low back and lower extremity radiculopathy disabilities in November 2020. In the November 2020 VA examination for the Veteran's back, the examiner did not provide range of motion results on passive motion, noting that it was not safe. However, the examiner did not provide any further explanation and did not address the estimated range of motion results provided for the previous VA examinations conducted during the appeal period. The Court has held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). Moreover, during the November 2020 VA examination, the Veteran reported having severe pain from flare ups occurring two times per month for up to three days. The examination was not conducted during a flare-up. The examiner noted the examination was medically consistent with the Veteran's statements describing functional loss, yet then indicated that pain did not significantly limit functional ability with flare ups. The examiner also did not provide a description in terms of range of motion. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court noted that the adequacy of a VA examination not conducted during a flare-up depends on whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during a flare-up. In this case, range of motion findings during a flare-up were absent, and the examiner did not document the efforts made to provide an estimate of functional loss. For these reasons, the Board finds that an additional VA examination is needed. The examiner should also determine whether it is possible to provide a retrospective medical opinion for the VA examinations conducted during the appeal period. 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). In addition, the November 2020 VA examination report for the Veteran's back indicated that he experienced radiculopathy symptoms that were mild for intermittent pain, paresthesias and/or dysesthesias, and numbness and that there was no constant pain. However, the November 2020 VA examination report for peripheral nerves indicated that the symptoms attributable to any peripheral nerve condition (the only diagnoses provided in that report were for lower extremity radiculopathy) were inconsistent with those documented in the November 2020 back examination, including moderate constant pain of both lower extremities, and moderate intermittent pain of the left lower extremity. It would be helpful for an examiner to clarify or resolve what appears to be a discrepancy of findings from the same examiner on the same date. Furthermore, the Board notes that the issue of entitlement to TDIU is inextricably intertwined with the increased rating issues remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his low back and radiculopathy of the lower extremities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After obtaining any outstanding records, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected low back strain with spondylosis. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including this Board remand. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees upon active motion, passive motion, weight-bearing, and nonweight-bearing testing. 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 provide an explanation for this determination in the report. The examiner should also indicate whether there is any form of ankylosis. He or she should further state the total duration of any incapacitating episodes over the past 12 months and identify any neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). The examiner should further discuss any additional functional impairment that occurs during flare-ups, including any additional limitation of motion. To the extent possible, he or she should address the frequency, duration, characteristics, and severity of flare-ups (through an examination, review of the medical records, and/or history provided by the Veteran). If the examination is not provided during a flare-up, and the examiner cannot otherwise opine as to functional loss, he or she must provide an explanation. Further, the VA examiner should estimate range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examinations conducted during the appeal period in May 2001, August 2011, February 2017, and November 2020. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected radiculopathy of the bilateral lower extremities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including this Board remand. The examiner should report all signs and symptoms necessary for rating the Veteran's radiculopathy of the bilateral lower extremities under the rating criteria. In particular, he or she should identify the affected nerve or nerve group. For each nerve or nerve group affected, the examiner should indicate whether the impairment is mild, moderate, or severe. He or she should also state whether there is incomplete or complete paralysis. To the extent possible, the examiner should also address the inconsistent findings made during the November 2020 VA examinations discussed above. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.