Citation Nr: 21076136 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-21 565 DATE: December 22, 2021 ORDER Entitlement to a 40 percent initial evaluation, but no higher, for service-connected radiculopathy of the right sciatic nerve from August 9, 2017, to the present is granted, subject to the laws and regulations governing monetary benefits. Entitlement to a 20 percent initial evaluation, but no higher, for service-connected radiculopathy of the left sciatic nerve from April 12, 2017, to August 8, 2017, is granted, subject to the laws and regulations governing monetary benefits. Entitlement to a 40 percent initial evaluation, but no higher, for service-connected radiculopathy of the left sciatic nerve from August 9, 2017, to the present is granted, subject to the laws and regulations governing monetary benefits. Entitlement to a 30 percent initial evaluation, but no higher, for service-connected radiculopathy of the right anterior crural (femoral) nerve from April 22, 2021, to the present is granted, subject to the laws and regulations governing monetary benefits. Entitlement to a 30 percent initial evaluation, but no higher, for service-connected radiculopathy of the left anterior crural (femoral) nerve from April 22, 2021, to the present is granted, subject to the laws and regulations governing monetary benefits. Entitlement to a total evaluation based individual unemployability due to service-connected disabilities (TDIU) from August 15, 2014, to August 14, 2015, is granted. REMANDED Entitlement to an evaluation in excess of 40 percent for service-connected lumbosacral degenerative disc disease with listhesis and spondylosis (hereinafter, service-connected low back disabilities) is remanded. Entitlement to an evaluation in excess of 20 percent for service-connected left knee chondromalacia with meniscal repair and residual scars is remanded. FINDINGS OF FACT 1. The most probative evidence reflects that, from August 9, 2017, to the present, the manifestations of the Veteran's service-connected radiculopathy of the right sciatic nerve were beyond wholly sensory, and most closely approximated "moderately severe" incomplete paralysis of the nerve. 2. The most probative evidence reflects that, from April 12, 2017, to August 8, 2017, the manifestations of the Veteran's service-connected radiculopathy of the left sciatic nerve were wholly sensory, and most closely approximated "moderate" incomplete paralysis of the nerve. 3. The most probative evidence reflects that, from August 9, 2017, to the present, the manifestations of the Veteran's service-connected radiculopathy of the left sciatic nerve were beyond wholly sensory, and most closely approximated "moderately severe" incomplete paralysis of the nerve. 4. The most probative evidence reflects that, from April 22, 2021, to the present, the manifestations of the Veteran's service-connected radiculopathy of the right anterior crural (femoral) nerve were beyond wholly sensory, and most closely approximated "severe" incomplete paralysis of the nerve. 5. The most probative evidence reflects that, from April 22, 2021, to the present, the manifestations of the Veteran's service-connected radiculopathy of the left anterior crural (femoral) nerve were beyond wholly sensory, and most closely approximated "severe" incomplete paralysis of the nerve. 6. The most probative evidence reflects that the Veteran's service-connected disabilities, in concert, rendered him incapable of securing or following a substantially gainful occupation since August 15, 2014. CONCLUSIONS OF LAW 1. The criteria for a 40 percent initial evaluation, but no higher, for the Veteran's service-connected radiculopathy of the right sciatic nerve are met from August 9, 2017, to April 21, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 2. The criteria for a 20 percent initial evaluation, but no higher, for the Veteran's service-connected radiculopathy of the left sciatic nerve are met from April 12, 2017, to August 8, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 3. The criteria for a 40 percent initial evaluation, but no higher, for the Veteran's service-connected radiculopathy of the left sciatic nerve are met from August 9, 2017, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 4. The criteria for a 30 percent initial evaluation, but no higher, for the Veteran's service-connected radiculopathy of the right anterior crural (femoral) nerve are met from April 22, 2021, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8526. 5. The criteria for a 30 percent initial evaluation, but no higher, for the Veteran's service-connected radiculopathy of the left anterior crural (femoral) nerve are met from April 22, 2021, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8526. 6. The criteria for a TDIU are met from August 15, 2014. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1972 to May 1975 and in the United States Navy from March 1977 to May 1987 and from January 1988 to September 1994. He also had additional service of an unverified nature and duration in a Reserve component of the armed forces. This matter comes to the Board of Veterans' Appeals (Board) from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In September 2020, the Veteran presented oral testimony in support of his appeal at a hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. The Veteran's appeal was previously before the Board in February 2021, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. Clarification of the issues on appeal After the Board's February 2021 remand, the AOJ issued two rating decisions which, among other actions, granted a TDIU from May 18, 2015, to October 22, 2017, assigned separate 20 percent and 10 percent initial evaluations for radiculopathy affecting the Veteran's right and left anterior crural (femoral) nerves from April 22, 2021, and increased the evaluation for the Veteran's service-connected radiculopathy affecting the right sciatic nerve from 10 percent to 20 percent, effective from April 22, 2021. Regarding the Veteran's TDIU appeal, the AOJ's actions represent a partial grant of the benefits sought, as such does not account for an allowance throughout the entirety of the appeal period for consideration regarding that issue. As such, the Veteran's TDIU appeal remains in appellate status and has been recharacterized to reflect the benefits remaining on appeal. Parker v. Brown, 7 Vet. App. 116 (1994); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) Regarding the separate and increased evaluations assigned for the Veteran's radiculopathy of the sciatic and anterior crural (femoral) nerves, while Veteran has not expressed disagreement with the assigned evaluations, these appealed issues remain in appellate status as part and parcel of his appeal seeking an increased evaluation for his service-connected low back disabilities because the rating criteria pertinent to the thoracolumbar spine refer to rating such neurologic abnormalities. 38 C.F.R. § 4.71a, General Rating for Diseases and Injuries of the Spine, Note (1). 1. Entitlement to an increased initial evaluation for service-connected radiculopathy of the right sciatic nerve, currently evaluated 10 percent disabling prior to April 22, 2021, and 20 percent disabling, thereafter 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected radiculopathy of the left sciatic nerve 3. Entitlement to an initial evaluation in excess of 20 percent for service-connected radiculopathy of the right anterior crural (femoral) nerve 4. Entitlement to an initial evaluation in excess of 20 percent for service-connected radiculopathy of the left anterior crural (femoral) nerve Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Under Diagnostic Code 8520, complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the nerve warrants a 60 percent evaluation if it is severe with marked muscular atrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. Under Diagnostic Code 8526, complete paralysis of the anterior crural (femoral) nerve is rated 40 percent disabling, severe incomplete paralysis is rated 30 percent disabling, moderate incomplete paralysis is rated 20 percent disabling. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Court recently held in Miller v. Shulkin, 28 Vet. App. 376 (2017), that the language of 38 C.F.R. § 4.124a provides for a maximum 20 percent rating for peripheral neuropathy when the involvement is wholly sensory. Pursuant to 38 C.F.R. § 4.123, however, the maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis, i.e., no more than 40 percent. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." Analysis As analysis of these appealed issues entails application of similar diagnostic criteria to congruent facts, the Board will discuss them together for the sake of economy. The Veteran's service-connected radiculopathy of the paired (bilateral) sciatic and anterior crural (femoral) nerves are currently evaluated under the criteria of 38 C.F.R. § 1.124A, Diagnostic Codes 8520 and 8526, pertaining to paralysis (complete or incomplete) of the individual sciatic and anterior crural (femoral) nerves, respectively. As these matters involve the propriety of assigned initial evaluations for these service-connected disabilities, all of which are part and parcel of the Veteran's appeal seeking an increased evaluation for his service-connected low back disabilities, the appeal period for consideration by the Board is connected with the Veteran's claim for the latter (filed on May 18, 2015), including the one-year "look back" period provided by 38 C.F.R. § 3.400 (o) (2) and Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010). For the reasons discussed below, the Board concludes that the most probative evidence reflects that the functional impairment of earning capacity stemming from each of these disabilities more closely approximates the criteria for initial evaluations higher than those currently assigned. As such, a partial allowance of each appealed issue is warranted. As noted in the Introduction, the Veteran did not file claims specifically seeking service connection for radiculopathy affecting any nerve(s) in his legs or for increased evaluations for such. Rather, service connection for these disabilities was granted as part and parcel of his claim seeking an increased evaluation for his service-connected low back disabilities, which was initially received by the AOJ on May 18, 2015. In developing this claim and resulting appeal, the AOJ obtained the Veteran's pertinent VA and private treatment records, received lay statements from the Veteran regarding the manifestations of his service-connected low back disabilities, and provided him a VA spine examination in June 2015; however, this evidence does not show any indication that his service-connected low back disabilities were manifested by impairment of any nerve affecting either of his legs. The first indication of such neurologic manifestations of the Veteran's service-connected low back disabilities is reflected in the report of a VA examination conducted on April 12, 2017, which reflects a diagnosis of radiculopathy affecting the left sciatic nerve manifested by intermittent pain, numbness, and paresthesias and/or dysesthesias. The April 2017 VA examiner stated that the Veteran's left sciatic radiculopathy was "mild," and the Veteran did not report that the disability interfered with his ability to walk or necessitated his use of assistive devices for mobility. This evidence is congruent with the Veteran's VA and private treatment records contemporaneous to the VA examination. The Board finds that the manifestations of the Veteran's radiculopathy of the left sciatic nerve, as reported in the April 2017 VA examination report, most closely approximate "moderate" incomplete paralysis of the nerve. While the April 2017 VA examiner classified the severity of this disability as "mild," the Court's guidance in Miller paired with the language of 38 C.F.R. § 4.124a provides the Board, as the finder of fact, with the discretion to determine that the Veteran's symptoms, while wholly sensory, most closely approximate "moderate" incomplete paralysis of this nerve. Accordingly, a partial grant of the benefits sought is warranted, and the 10 percent initial evaluation for radiculopathy of the left sciatic nerve is increased from 10 percent to 20 percent, effective from April 12, 20017 the date of the April 2017 VA examination. To this extent, the Veteran's appeal is granted. Due to inadequate range of motion findings recorded at the April 2017 VA spine examination, the Veteran was provided another such examination in August 2017. The August 2017 VA examination report reflects a diagnosis of radiculopathy affecting both of the Veteran's sciatic nerves, resulting in mild intermittent pain, numbness, and paresthesias and/or dysesthesias in both legs. Critically, while the Veteran did not endorse using assistive devices for mobility, he reported being "barely able to walk" during a flare-up of low back and radicular symptoms. This evidence is congruent with the Veteran's VA and private treatment records contemporaneous to the VA examination. In considering the August 2018 VA examination results regarding the Veteran's service-connected radiculopathy, which became bilateral since the April 2017 VA examination, the Board will employ the same principles and reasoning underlining the partial allowance outlined above. 38 C.F.R. § 4.124a, Miller, supra. Furthermore, the August 2017 VA examination report clearly indicates that the Veteran's service-connected radiculopathy of the paired sciatic nerves resulted in compromised mobility in addition to sensory-related symptoms. Armed with this evidence, the Board finds that the manifestations of these service-connected disabilities are beyond wholly sensory, and thus, such most closely approximate "moderately severe" incomplete paralysis of both sciatic nerves. Having arrived at this conclusion, the criteria for separate 40 percent initial evaluations for service-connected radiculopathy affecting the left and right sciatic nerves are met, effective from August 9, 2017 the date of the August 2017 VA examination. To this extent, the Veteran's appeal is granted. Consequent to the Board's February 2021 remand, the Veteran was provided another VA spine examination in April 2021. The report of this examination reflects a progression of the Veteran's neurologic manifestations of his service-connected low back disabilities, as the diagnosis of radiculopathy was expanded to include involvement of the bilateral sciatic and anterior crural (femoral) nerves. The examiner stated that these disabilities were manifested by intermittent pain, numbness, and paresthesias and/or dysesthesias in both legs, noted to be "moderate" on the right and "mild" on the left. Also, the Veteran's ability to walk was further hampered by his service-connected low back and neurologic disabilities, as he endorsed regular use of a walking staff. This evidence is congruent with the Veteran's VA and private treatment records contemporaneous to the VA examination. Again, the Board applies the evidence showing that the Veteran's service-connected radiculopathy of the bilateral sciatic and anterior crural (femoral) nerves results in impaired ambulation to the language of 38 C.F.R. § 4.124a and the holding in Miller and finds that such must be deemed beyond wholly sensory. Such a finding leads the Board to determine that the April 2021 VA examination results most closely approximate "moderately severe" incomplete paralysis of both sciatic nerves and "severe" incomplete paralysis of both anterior crural (femoral) nerves. As such, the Board concludes that the criteria for (1) separate 40 percent initial evaluations for the Veteran's service-connected radiculopathy of the bilateral sciatic nerves continue to be met and (2) separate 30 percent initial evaluations for the Veteran's service-connected radiculopathy of the bilateral anterior crural (femoral) nerves are warranted, effective from April 22, 2021 the date of the April 2021 VA examination. To this extent, the Veteran's appealed issues are granted. The Board has considered whether further increased initial evaluations are warranted regarding the Veteran's service-connected radiculopathy of the paired sciatic and anterior crural (femoral) nerves; however, the evidence of record does not support such. Specifically, the most probative evidence of record does not reflect that the Veteran's service-connected low back disabilities are manifested by (1) impairment of the left sciatic nerve prior to April 12, 2017, (2) symptoms of radiculopathy of the left sciatic nerve that are beyond wholly sensory from April 12, 2017, to August 8, 2017, (3) impairment of the right sciatic nerve prior to August 9, 2017, (4) symptoms of radiculopathy of the either sciatic nerve which include marked muscular atrophy of either leg and/or complete paralysis of either nerve from August 8, 2017, to the present, (5) impairment of either anterior crural (femoral) nerve prior to April 22, 2021, or (6) complete paralysis of either anterior crural (femoral) nerve with paralysis of any quadriceps extensor muscles of either leg from April 22, 2021 to the present. In view of above, further increased initial evaluations for the Veteran's service-connected radiculopathy of the paired sciatic and anterior crural (femoral) nerves are not warranted for any time period for consideration. 5. Entitlement to a TDIU prior to May 18, 2015 Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In evaluating a veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Analysis The Veteran contends that his service-connected low back and left knee disabilities, in concert, precluded him from participating in a substantially gainful occupation prior to May 18, 2015. The Veteran's claim for a TDIU was received by the AOJ on May 18, 2015. Since claims for a TDIU are considered to be claims for an increased rating, the effective date of any such award may be assigned one year prior to VA's receipt of the claim if the evidence shows worsening of the claimed disability within one year of such receipt. Hurd v. West, 13 Vet. App. 449 (2000); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Since entitlement to a TDIU has been established by the AOJ from May 18, 2015, to the present, the appeal period for consideration by the Board regarding this issue is from May 18, 2014, to May 17, 2015. As an initial matter, the Board notes that the AOJ stated in the May 2021 rating decision that the allowance of TDIU from May 18, 2015, did not represent a full grant of the benefits sought, and thus, further (i.e. earlier) entitlement to this benefit would be readjudicated and returned to the Board. Despite this, the concurrently issued May 2021 Supplemental Statement of the Case (SSOC) did not include readjudication of the remaining entitlement in appellate jurisdiction. Nonetheless, the issue remains before the Board as part and parcel of the Veteran's appealed issues seeking increased evaluations. To the extent that the AOJ has not considered such in the first instance, the Board's fully favorable disposition in this matter obviates the need for another remand without the possibility of a greater benefit to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The evidence shows that the Veteran is a high school and college graduate, and he was employed by a large communications corporation as an information technologist until late-March 2014. He alleges that the symptoms and functional impairment associated with his service-connected low back and left knee disability, in concert, severely impacted his ability to continue participating in this substantially gainful occupation. Throughout the pendency of the appeal, several VA physicians and medical professionals have commented on the physical limitations posed by these two service-connected disabilities and the collective negative impact on the Veteran's employability. Critically, the VA physician who completed the April 2021 VA spine and knee examinations noted the chronic progressive nature of the Veteran's service-connected low back and left knee disabilities and pointedly stated that the Veteran "has been rendered unable to secure and maintain gainful occupation for many years[,] including March 2014 - October 2017." The Board finds the April 2021 VA examiner's opinion to be highly probative of the matter for consideration, and as the finder of fact, concludes that the most probative evidence reflects that the Veteran's service-connected low back and left knee disabilities, in concert, have precluded him from participation in a substantially gainful occupation throughout the entirety of the appeal period for consideration (from May 18, 2014, to May 17, 2015). As such, a TDIU is warranted from May 18, 2014, to May 17, 2015, and the Veteran's appeal is granted. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 40 percent for service-connected low back disabilities is remanded. 2. Entitlement to an evaluation in excess of 20 percent for service-connected left knee chondromalacia with meniscal repair and residual scars is remanded. In pertinent part, the Board's February 2020 remand directed the AOJ to request that the Veteran be scheduled for appropriate VA examinations for the purpose of evaluating his service-connected low back and left knee disabilities. More specifically, the Board concluded that such actions were necessary to determine the ranges-of-motion of the Veteran's thoracolumbar spine and left knee during a flare-up of symptoms contemporaneously and contemporaneous to the VA spine examinations completed in August 2017, April 2017, and June 2015, and August 2017 VA knee examination. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017) Chotta v. Peake, 22 Vet. App. 80 (2008). The Board's February 2020 remand directives pertinent to these matters were recounted by the AOJ in the corresponding examination request to the Veterans Health Administration, and Veteran was provided VA spine and knee examinations in April 2021; however, the VA physician who conducted these examinations did not provide the requested range of motion findings for the Veteran's thoracolumbar spine or left knee during a flare-up of symptoms contemporaneously or retrospectively. Noting this deficiency, the AOJ attempted to obtain the necessary evidence from the April 2021 VA examiner in a May 2021 addendum request; however, such was subsequently cancelled, and the AOJ readjudicated the Veteran's appealed issues without rectifying this inadequacy. The United States Court of Appeal for Veteran's Claims (Court) has recently provided guidance for cases involving a VA examiner's description of additional limitation and functional impairment during a flare-up of symptoms currently and in the past under Sharp. In Cagliero v. Wilkie, No. 19-6895 (November 30, 2020), a non-precedential single-judge memorandum decision issued by the Court, provided that a Sharp-compliant examination (1) describes the increased symptoms during a flare-up and (2) describes the increased limitation of the affected joint (in degrees) during a flare-up. Clearly, the April 2021 VA examinations are inadequate for the purpose of readjudicating the Veteran's appealed issues, as the VA examiner failed to abide the holding in Sharp and guidance in Cagliero in providing range-of-motion findings for the Veteran's thoracolumbar spine or left knee during a flare-up of symptoms contemporaneously or retrospectively. As such, another remand is necessary. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertinent to the Veteran. 2. The AOJ must contact the Veteran and request that he complete a release for outstanding private treatment records pertinent to the disabilities remanded herein. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examinations to evaluate his service-connected low back disabilities and left knee chondromalacia with meniscal repair and residual scars. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of the manifestations of the Veteran's service-connected low back disabilities and left knee chondromalacia with meniscal repair and residual scars. The size, shape, location, and functional impairment (to include pain, stability, or interference with motion) of each scar must be specifically stated. *Regarding the Veteran's left knee, the Board wishes to underline that this examination is to evaluate the Veteran's service-connected left knee chondromalacia with meniscal repair and residual scars as opposed to symptoms associated with his service-connected left knee arthritis and patellar spurs. *To the extent possible, it would be helpful if the examination was scheduled during a flare-up of the Veteran's service-connected low back disabilities and left knee chondromalacia with meniscal repair and residual scars. The examiner must provide statements identifying the additional functional impairment and limited motion during flare-ups of symptoms. *In addition to reporting the Veteran's low back and left knee symptoms attributable to these service-connected disabilities, the VA examiner must review the VA spine examinations completed in August 2017, April 2017, and June 2015, and the August 2017 VA knee examination and, based on the information therein and the Veteran's VA and private treatment records contemporaneous with such, retrospectively provide statements identifying the additional functional impairment and limited motion during flare-ups of symptoms at the time of these prior examinations. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall 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 the particular question. 4. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of any additional evidence added to the record. If any benefit sought on appeal is not granted to the fullest extent, the Veteran and his representative should be furnished with a copy of this readjudication and provided an appropriate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.