Citation Nr: 21005492 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-23 959A DATE: February 1, 2021 REMANDED An evaluation in excess of 10 percent for degenerative changes, lumbosacral spine from October 9, 2009, in excess of 20 percent from March 10, 2014, and in excess of 10 percent from January 1, 2020. An evaluation in excess of 10 percent for radiculopathy, right lower extremity, prior to May 1, 2017, and in excess of 20 percent therefrom. An evaluation in excess of 10 percent from October 9, 2009, for radiculopathy, left lower extremity, in excess of zero percent from March 10, 2014, and in excess of 20 percent from May 1, 2017.   REASONS FOR REMAND The Veteran had active service from March 2001 to June 2004. This matter is on appeal from a December 2009 rating decision. During the course of the appeal, in an August 2015 rating decision, the RO increased the disability rating of the service-connected low back disorder to 20 percent effective from March 10, 2014. In the August 2015 rating decision, the RO also decreased the evaluation of radiculopathy, left lower extremity, from 10 percent disabling, to zero percent effective March 10, 2014. A November 2018 rating decision increased the disability rating for both radiculopathy of the left lower extremity and right lower extremity to 10 percent effective May 1, 2017. An October 2019 rating decision decreased the evaluation of the spine disability to 10 percent effective January 1, 2020. The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in October 2016. In November 2020, the Veteran withdrew his July 2020 request for a second hearing. In July 2020, the Veteran filed a VA Form 20-0996 Request for Higher-Level Review, with regard to the rating decision issued in October 2019. This was not a valid election into the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act). First, the form submitted by the Veteran was not a valid form to opt-into the AMA through the Rapid Appeals Modernization Program. See 38 C.F.R. § 3.2400(c). Second, the October 2019 rating decision was not an initial decision addressing new issues under AMA. Rather, it addressed components of the same underlying disability rating issues, which were already pending under the Legacy system. A separate election into the AMA is not valid under this circumstance. See 38 C.F.R. § 3.151(c)(2).   1. An evaluation in excess of 10 percent for degenerative changes, lumbosacral spine from October 9, 2009, in excess of 20 percent from March 10, 2014, and in excess of 10 percent from January 1, 2020. While the record contains contemporaneous VA examinations regarding the Veteran’s disability, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The most recent VA examiner in May 2017 did not attempt to elicit relevant information regarding the description of any additional functional loss suffered with repeated use over time. Rather, the examiner noted the Veteran’s report of back pain with prolonged sitting and lifting, but then stated that information regarding additional functional loss could not be provided because “[t]he Veteran was not examined immediately after repeated use over a period of time.” As this rationale is legally inadequate, remand for a new examination is warranted. 2. An evaluation in excess of 10 percent for radiculopathy, right lower extremity, prior to May 1, 2017, and in excess of 20 percent therefrom. 3. An evaluation in excess of 10 percent from October 9, 2009, for radiculopathy, left lower extremity, in excess of 0 percent from March 10, 2014, and in excess of 20 percent from May 1, 2017. These issues are also remanded as intertwined with the lumbar spine rating claim. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to assess the severity of his lumbar spine disability. (a.) 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, including all objective neurologic impairments. (Continued on the next page)   (b.) In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). (c.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and with repeated use over time, 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 and with repeated use over time 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). RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.