Citation Nr: 21073049 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 10-43 487 DATE: December 7, 2021 REMANDED Entitlement to an initial rating greater than 10 percent for a low back disability characterized as compression fracture of the L-1 segment of the lumbar spine prior to October 17, 2016 and greater than 20 percent from that date is remanded. Entitlement to an initial rating greater than 10 percent for a left ankle disability, characterized as residuals of left ankle sprain, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the United States Army from January 1985 to March 1988 and March 1990 to February 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in February 2009. These issues were previously before the Board in February 2014 and September 2016, at which time, the issues were remanded to the AOJ for additional evidentiary development. In a January 2017 rating decision, the AOJ increased the Veteran's rating to 10 percent for L1 compression fracture residuals effective October 17, 2016; and to 20 percent from October 17, 2016. In addition, the AOJ also increased the Veteran's rating to 20 percent for L1 compression fracture residuals effective October 17, 2016. Because the increase in evaluation of the Veteran's lumbar spine disability did not represent the maximum evaluation available for the condition, the Veteran's claim remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The matter then returned to the Board in August 2017, January 2019, and March 2021, at which time, the issues were remanded to the AOJ for additional development. This case has now been returned to the Board for further appellate action, but an additional remand is unfortunately required to comply with due process requirements. 1. Entitlement to an initial rating greater than 10 percent for a low back disability prior to October 17, 2016 and in excess of 20 percent from that date is remanded. Although the record contains contemporaneous VA examinations regarding the Veteran's low back disability, the most recent VA examination in June 2021 does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In Sharp, the United States Court of Appeals for Veterans Claims (Court) held that in addressing the nature of any flare-ups, examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. The June 2021 VA examiner noted that the Veteran reported that he experienced a deep ache that increased to a burning pain approximately three times a week. Despite the Veteran's report of intermittent burning back pain, the examiner noted that the Veteran denied flare ups over the described history taken during the examination. The VA examiner did not address whether the Veteran had any additional functional loss including additional loss of range of motion during periods of intermittent burning back pain, which renders the examination incomplete. See also January 2014 appellate brief. The Board finds that a VA examination is warranted to determine the current severity of the Veteran's low back disability. 2. Entitlement to an initial rating greater than 10 percent for left ankle disability is remanded. Although the record contains contemporaneous VA examinations regarding the Veteran's left ankle disability, the most recent VA examination in June 2021 does not comply with the requirements in Sharp. The VA examiner noted that the Veteran reported that he had some sharp pain of his left ankle with overuse. See also January 2014 appellate brief. Despite the Veteran's report of sharp left ankle pain with overuse, the examiner noted that the Veteran denied flare ups over the described history taken during the examination. The VA examiner did not discuss whether the Veteran had any additional functional loss including additional loss of range of motion during periods of sharp left ankle pain with overuse, which renders the examination incomplete. Further, the examiner has provided contradictory information regarding the severity of the Veteran's left ankle disability. Specifically, the examiner noted that the Veteran had normal range of motion of the left ankle during active and passive range of motion testing, and the examiner noted that the Veteran had additional loss of function or range of motion after three repetitions with plantar flexion to 40 degrees and dorsiflexion to 15 degrees after repetitive use testing. Then later, the examiner noted that the procured evidence (including lay testimony) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with repeated use over time. The examiner noted that there did not seem to be further loss of repetitive motion. The examiner did not provide any analysis in support of this finding, although it contradicts their previous finding that the Veteran experienced loss of motion after repetitive use testing. In addition, the examiner noted that the functioning of the Veteran's left ankle was so diminished that amputation with prosthesis would equally serve the Veteran. The examiner provided no analysis in support of this finding, although it contradicts the examiner's prior findings, which indicate that the Veteran was able to use to his left ankle to some degree, which renders the examination inadequate. In addition, the Board notes that in December 2019, a VA examiner opined that it was less likely as not that the Veteran's muscle atrophy of the soleus muscle was attributable to his service-connected left ankle disability. The examiner noted that atrophy of the soleus muscle was an age-related atrophy. The examiner noted that muscle volume decreased with age, and senescence caused atrophy of the muscle. The examiner noted that a review of medical literature did not support a finding that the tendon tears of the Veterans left ankle were related to muscle atrophy. The examiner did not discuss whether any other risk factors contributed to muscle atrophy, including diminished use of the muscle due to the Veteran's service-connected disabilities, including his left ankle disability and his low back disability, which renders the opinion inadequate. The Board finds that a VA examination is warranted to determine the current severity of the Veteran's left ankle disability. 3. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues of entitlement to initial increased ratings for the Veteran's low back disability and left ankle disability could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined, and a remand of the claim of entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of the Veteran's low back disability. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner must review the claims file. The examiner should conduct range of motion testing of the Veteran's low back; and indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the low back condition. To the extent possible, based on information from the record and the Veteran's own statements regarding the severity, frequency, duration, or functional loss manifestations during flare-ups and with repeated use, the examiner should provide an assessment of the low back functional loss during flare-ups and/or with repeated use, expressed in an estimate of motion loss in terms of degrees. If it is not possible to provide a specific measurement, 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 may not rely solely upon the fact that the examiner did not personally observe the Veteran during a period of flare-up. To the extent possible, the examiner should identify any symptoms and functional impairments due to the low back disability alone and discuss the effect of the Veteran's low back disability on any occupational functioning and activities of daily living. In rendering the opinions, the examiner must consider and discuss the statements of the Veteran regarding the severity of the symptoms of his low back disability. The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved. 2. Schedule the Veteran for a VA examination to determine the current severity of the Veteran's left ankle disability. All indicated tests and studies should be accomplished and the finding reported in detail. The examiner must review the claims file. The examiner should conduct range of motion testing of the Veteran's left ankle; and indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left ankle disability. To the extent possible, based on information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups and with repeated use, the examiner should provide an assessment of the left ankle functional loss during flare-ups and/or with repeated use, expressed in an estimate of motion loss in terms of degrees. If it is not possible to provide a specific measurement, 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 may not rely solely upon the fact that the examiner did not personally observe the Veteran during a period of flare-up or with repeated use overtime. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left ankle disability alone and discuss the effect of the Veteran's left ankle disability on any occupational functioning and activities of daily living. Finally, the examiner should provide an opinion regarding the following: (a.) whether it is at least as likely as not (50 percent or greater likelihood) that any current atrophy of the soleus muscle is proximately due to a service-connected disability, including but not limited to the Veteran's left ankle disability and low back disability; (b.) whether it is at least as likely as not (50 percent or greater likelihood) that any current atrophy of the soleus muscle is aggravated (increase in severity beyond the natural progression of the disorder) by a service-connected disability to include but not limited to the Veteran's left ankle disability and low back disability; (c.) whether it is at least as likely as not (50 percent or greater likelihood) that any current atrophy of the soleus muscle is proximately due to decreased use of the soleus muscle due to a service-connected disability, including but not limited to the Veteran's left ankle disability and low back disability; and (d.) whether it is at least as likely as not (50 percent or greater likelihood) that any current atrophy of the soleus muscle is aggravated (increase in severity beyond the natural progression of the disorder) by decreased use of the soleus muscle due to a service-connected disability to include but not limited to the Veteran's left ankle disability and low back disability. (Continued on the next page) In rendering the opinions, the examiner must consider and discuss the statements of the Veteran regarding the severity of the symptoms of his left ankle disability. The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved. K. McDonald Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fleury Johnson, Gerline R. 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.