Citation Nr: 21005938 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 01-05 186 DATE: February 2, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for service-connected cervical strain with C4-5 bulge and bilateral foraminal stenosis (cervical spine disability) is denied. Entitlement to a separate 20 percent disability rating for neurological manifestations in the right upper extremity associated with the Veteran’s service-connected cervical spine disability is granted, effective May 20, 2011, subject to the rules and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 20 percent for service-connected right upper extremity radiculopathy associated with service-connected cervical spine disability is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected chronic pain, residual of left knee injury (left knee disability) is remanded. Entitlement to a compensable rating prior to February 27, 2019, and in excess of 10 percent thereafter, for service-connected left knee instability is remanded. Entitlement to an initial compensable rating for service-connected scars (3), left knee associated with service-connected left knee disability is remanded. Entitlement to a compensable rating prior to February 27, 2019, and in excess of 10 percent thereafter, for service-connected painful scar is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected lumbar strain (lumbar spine disability) is remanded. Entitlement to a compensable rating prior to February 27, 2019, and in excess of 10 percent thereafter, for service-connected sciatic radiculopathy, left lower extremity associated with service-connected lumbar spine disability is remanded. Entitlement to a separate compensable rating for neurological manifestations of the left upper extremity associated with the Veteran’s service-connected cervical spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s service-connected cervical spine disability was not manifested by unfavorable ankylosis of the entire cervical spine, unfavorable ankylosis of the entire spine, or IVDS. 2. The evidence of record establishes that the Veteran is right hand dominant. 3. Resolving all reasonable doubt in the Veteran’s favor, effective May 20, 2011, his service-connected cervical spine disability was manifested by neurological symptoms in the right upper extremity that resulted in mild incomplete paralysis. 4. The preponderance of the evidence demonstrates that, since February 27, 2019, the Veteran’s service-connected right upper extremity radiculopathy was manifested by no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for service-connected cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5237, 5242 (2019). 2. The criteria for a separate 20 percent disability rating for neurological symptoms in the right upper extremity are met, effective May 20, 2011. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513 (2019). 3. The criteria for a rating in excess of 20 percent for service-connected right upper extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1995 to July 1998, with additional periods in the National Guard. This originally came before the Board of Veterans’ Appeals (Board) on appeal from September 2000 and February 2012 rating decisions. The September 2000 rating decision denied a disability rating in excess of 10 percent for the Veteran’s left knee disability; the February 2012 rating decision granted service connection for the Veteran cervical spine disability and lumbar spine disability. The issue of an increased disability rating for chronic pain as a residual of a left knee injury was previously remanded by the Board in January 2003, March 2004, and August 2006 for additional development. In a December 2007 decision, the Board denied a disability rating in excess of 10 percent for residuals of a left knee injury, service connection for carpal tunnel syndrome of the right wrist, and a temporary total evaluation based on convalescence. The Veteran appealed the Board’s decision regarding his left knee claim to the Court of Appeals for Veterans Claims (Court). In an April 2009 Joint Motion for Remand (JMR), the parties agreed to vacate the Board’s decision and remand the case to the Board for additional development. In accordance with the April 2009 JMR, the Board remanded the issue of the left knee increased rating claim in March 2010 for further development; the Board also included the issue of entitlement to TDIU in its decision. In February 2016, the Board remanded the issues of increased ratings for the left knee, cervical, lumbar disabilities, and entitlement to TDIU. In September 2003, the Veteran testified at a hearing before a Veterans Law Judge (VLJ); a transcript of that hearing is of record. In July 2017, he was notified that the VLJ who held the September 2003 hearing was no longer available to participate in the decision. The Veteran was provided the opportunity to appear at another hearing before a different VLJ. Because the Veteran responded in August 2017 that he did not wish to appear at another Board hearing, the Board will consider the claims on the evidence of record. Following an August 2018 remand, the agency of original jurisdiction (AOJ) issued a rating decision in September 2020 that awarded service connection for right upper extremity radiculopathy associated with the Veteran’s service-connected cervical spine disability, and assigned a 20 percent disability rating, effective February 27, 2019. In an October 2020 rating decision, the AOJ awarded service connection for left knee instability, and assigned a 10 percent disability rating, effective February 27, 2019. It also awarded service connection for painful scar, left knee, and assigned a 10 percent disability rating, effective February 27, 2019. Finally, it awarded service connection for sciatic radiculopathy, left lower extremity associated with the Veteran’s service-connected lumbar spine disability, and assigned a 10 percent disability rating, effective February 27, 2019. Because the ratings assigned in the September 2020 and October 2020 rating decisions arise out of the Veteran’s appeal of the February 2012 rating decision, the Board has assumed jurisdiction over those claims as part and parcel of his current appeal. Finally, the Bord notes that the Veteran was previously represented by an attorney, however, in October 2018, the attorney withdrew from representation. The Veteran was subsequently informed of this in September 2020, and he has not appointed another representative. As such, he is unrepresented in this matter. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). By way of background, the Veteran filed his claim for service connection for a cervical spine disorder in May 2011. In the February 2012 rating decision on appeal, the AOJ granted service connection and awarded an initial 30 percent disability rating to the Veteran’s service-connected cervical spine disability under Diagnostic Code 5237, effective May 20, 2011, the day his claim was received. As noted above, in a September 2020 rating decision, the AOJ awarded service connection for the Veteran’s right upper extremity radiculopathy and assigned an initial 20 percent disability rating under Diagnostic Code 8513, effective February 27, 2019. Although the Veteran’s cervical spine disability has been rated under Diagnostic Code 5237, all spine disabilities are rated, primarily, pursuant to the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Under the General Rating Formula, a 30 percent rating is warranted when forward flexion of the cervical spine is 15 degrees or less; or there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the cervical spine, or there is favorable ankylosis of the entire thoracolumbar spine is present. Finally, a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 94 (32th ed. 2012); see also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (defining ankylosis as fixation of a joint in a particular position). The Notes following the General Rating Formula provide further guidance for rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Alternatively, the Formula for Rating IVDS Based on Incapacitating Episodes provides a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. Under Diagnostic Code 8513 (paralysis of all radicular groups), a 20 percent rating is warranted for mild incomplete paralysis of either the dominant or non-dominant upper extremity. A 40 percent rating is warranted when there is moderate incomplete paralysis affecting the dominant upper extremity. A 70 percent rating is warranted when there is severe incomplete paralysis affecting the dominant upper extremity. Finally, a 90 percent rating is warranted when there is complete paralysis affecting the dominant upper extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8513. Complete paralysis is marked by all shoulder and elbow movements lost or severely affected; adduction, abduction, and rotation of the arm, flexion of the elbow, and extension of the wrist lost or severely affected; and all intrinsic muscles of the hand, and some or all flexions of the wrist and fingers paralyzed. Id. Under 38 C.F.R. § 4.124a, 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, at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Words such as “mild,” “moderate” and “severe” are not defined in the Rating 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. Use of terminology such as “severe” by VA examiners and others, although 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 has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The discussion and analysis below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A February 2011 VA MRI revealed mild to moderate bilateral foraminal stenosis due to bone spurs and acet arthropathy. Another February 2011 VA treatment record noted that the Veteran experienced numbness in his right hand and fingers, as well as an aching and shooting pain. The duration was for eight months, and it was intermittent. The treatment provider concluded that the Veteran experienced carpal tunnel syndrome/ulnar nerve irritation, and that he experienced some numbness and limitations with active range of motion at the wrist that limited his grip and pinch. The Veteran underwent a VA examination November 2011. He reported daily pain that caused discomfort and trouble sleeping; however, he denied problems with radiating pain or numbness to his upper extremities. He reported flare-ups, stating that he experienced headaches and could not move his upper areas. Upon examination, his range of motion was as follows: flexion to 15 degrees; extension to 25 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 20 degrees. The examiner noted that pain was exhibited throughout range of motion testing. Following repetitive-use testing, his range of motion remained consistent. There was localized tenderness or pain to palpation, as well as guarding or muscle spasms, but it did not result in abnormal gait or abnormal spinal contour. The examiner also noted that additional factors contributing to the Veteran’s disability included pain on movement. Muscle strength testing revealed normal strength on the right side, and no muscle atrophy. Reflex and sensory examination was normal, and the examiner indicated that the Veteran did not have radicular pain or other symptoms due to radiculopathy or IVDS associated with his service-connected cervical spine disability. A January 2012 VA treatment record noted that the Veteran experienced pain into his shoulders following a cervical spine injury during service. He reported that his pain was a ten out of ten, and that it extended from his neck to his arms, that it occurred daily, and that it was aggravated by lifting and carrying. The treatment provider noted that sensation was decreased in the C4 and C5 distribution. He was assessed with foraminal stenosis at C3-C4 and protrusion at C4-C5 with radiculopathies at C4-C5 due to sensory losses. A February 2012 VA treatment record noted that the Veteran’s medical history was significant for cervical radiculopathy. Another February 2012 VA treatment record notes that the Veteran was being seen for physical therapy for cervical spine pain that radiated into his bilateral shoulders. He described he pain as constant, and he indicated that it was aggravated by moving around. Upon examination, his range of motion was as follows: flexion to 10 degrees and extension to 25 degrees, with moderate pain noted during testing. Strength testing was within normal limits in his bilateral upper extremities. There was pain with palpation to the entire cervical spine and tight bilateral upper trapezius muscles. Ultimately, the Veteran was diagnosed cervical radiculopathy. A July 2016 private treatment record notes that the Veteran’s problems included cervical radiculopathy. In August 2016, the Veteran underwent another VA examination, and he reported that his neck hurt like a giant ball that was ready to explode. The examiner noted that the Veteran was right hand dominant. He reported flare-ups after standing for 10 minutes, after sitting in certain positions, and after sleeping the wrong way. Upon examination, his range of motion was as follows: flexion to 35 degrees; extension to 20 degrees; right lateral flexion to 25 degrees; left lateral flexion to 20 degrees; right lateral rotation to 45 degrees; and left lateral rotation to 40 degrees. The examiner noted that pain was exhibited throughout range of motion testing, but that it did not result in functional loss, and there was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation. Following repetitive-use testing, his range of motion remained consistent. The examiner then noted that pain, weakness, fatigability, and/or incoordination did not significantly limit his ability following repetitive use or during flare-ups. The examiner also noted that the Veteran had no muscle spasms and guarding that resulted in abnormal gait or abnormal spinal contour. Additional factors contributing to the Veteran’s disability included less movement than normal. Muscle strength testing revealed normal strength, and no muscle atrophy. The sensory examination was normal, and the examiner indicated that the Veteran did not have ankylosis, radiculopathy, any neurological abnormalities, or IVDS associated with his service-connected cervical spine disability. The examiner then noted that testing showed no electrodiagnostic evidence for C4-8 radiculopathy on either side, but there were mild conduction abnormalities in the bilateral nerves, consistent with mild focal neuropathy about the elbow without evidence of denervation. An October 2018 VA treatment record noted the Veteran’s report of chronic cervical spine pain that was greater on the right, that extended down his right arm into his hand. He stated that he experienced pins and needs in his right hand at times, and he rated his pain as an eight out of ten. The clinical impression was paracervical myalgias. A January 2019 VA treatment record noted the Veteran displayed full range of motion in his cervical spine. In February 2019, the Veteran underwent another VA examination, and he reported chronic daily pain that felt like pins and needles. He stated that he experienced a daily sharp aching and stabbing pain which he rated as an eight out of ten. Aggravating factors included any neck movements, lifting, and sleeping. Upon examination, his range of motion was as follows: flexion to 20 degrees; extension to 20 degrees; right lateral flexion to 15 degrees; left lateral flexion to 20 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 40 degrees. The examiner noted that pain was exhibited throughout range of motion testing and it contributed to functional loss. There was objective evidence of localized tenderness or pain on palpation in the bilateral trapezius that was moderate. Following repetitive-use testing, his range of motion remained consistent. The examiner then noted that the examination was being performed during a flare-up. The examiner also noted that the Veteran did not have muscle spasms and/or guarding of movement that resulted in abnormal gait or abnormal spinal contour. The examiner also noted that additional factors contributing to his disability included less movement than normal. Muscle strength testing was normal, and no muscle atrophy. The reflex and sensory examinations were normal. The examiner then noted that the Veteran displayed symptoms of radiculopathy in the right upper extremity, including mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner then noted that the Veteran’s right upper radicular groups was involved, and that it resulted in mild incomplete paralysis. There were no other neurological abnormalities, IVDS associated with his service-connected cervical spine disability was not demonstrated, and the examiner indicated that the Veteran did not have ankylosis. A May 2019 VA treatment record noted the Veteran displayed full range of motion in his cervical spine. Based on the foregoing, and after resolving all reasonable doubt in the Veteran’s favor, the Board finds that the separate 20 percent disability rating for neurological manifestations in the right upper extremity associated with his service-connected cervical spine disability awarded by the AOJ in a September 2020 rating decision should be made effective May 20, 2011. Indeed, the evidence dated in February 2011 indicate some level of disability due to shooting pain and numbness. Similarly, the January 2012 VA treatment record noted his report of pain into his shoulders, as well as decreased sensation and the diagnosis of radiculopathies. Likewise, a July 2016 private treatment record notes the diagnosis of cervical radiculopathy, and the October 2018 noted an impression of paracervical myalgias after the Veteran’s report of cervical spine pain that extended down his right arm into his hand. Although prior VA examiner’s indicated that the Veteran did not have neurological symptoms associated with his cervical spine, the February 2019 VA eventually indicated that his symptoms, including pain, numbness, and loss of sensation, were a neurological manifestations of his cervical spine and that it affected all radicular groups in the Veteran’s right upper extremity. Thus, a separate 20 percent disability rating under Diagnostic Code 8513 for neurological manifestations in the right upper extremity associated with his service-connected cervical spine disability is warranted, effective May 20, 2011. However, the preponderance of the evidence is against ratings greater than the 30 percent assigned to the Veteran’s service-connected cervical spine disability and the 20 percent assigned to the Veteran’s service-connected right upper extremity radiculopathy are not warranted at any point during the appeal period. With regard to the Veteran’s service-connected cervical spine disability, the August 2016 and February 2019 VA examiners specifically noted that the Veteran did experience ankylosis of the cervical spine, which is required to meet the criteria for a rating in excess of 20 percent under the General Rating Formula. With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, the Board notes that while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, this rule does not apply when, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Moreover, in this case, further development to obtain additional range of motion testing and/or estimations of what additional limitation of motion might exist during flare-ups would not avail the Veteran, as the medical assessments already of record demonstrate that he can in fact move his cervical spine. The evidence of record fails to demonstrate that the Veteran’s flare-ups are of such frequency, duration, and severity to cause immobility (ankylosis) of either the cervical spine in an unfavorable position, or the entire spine in an unfavorable position, and the medical evidence includes no suggestion that ankylosis has ever existed. Furthermore, the Board notes that a higher rating is not warranted under the Formula for rating IVDS, as there is nothing in the record to suggest that he experiences IVDS that results in incapacitating episodes having a total duration of at least 4 weeks during a twelve-month period. As such, the Board finds that the criteria for a rating in excess of 30 percent disability rating are not met. 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Code 5237. The Board notes that the AOJ issued a rating decision in December 2020 that reduced the rating assigned to the Veteran’s cervical spine from the currently assigned 30 percent rating to 20 percent, and it made the assignment effective March 1, 2021. Because the reduction had not yet taken effect, and because the Veteran has not expressed disagreement with the reduction, the propriety of the reduction is not on appeal and will not be addressed further. With regard to Veteran’s right upper extremity radiculopathy, the evidence of record fails to demonstrate a disability manifested by moderate incomplete paralysis. For example, despite the Veteran’s February 2011 complaints, during his November 2011 VA examination, he specifically denied radiating pain or numbness to his upper extremities, reflex and sensory testing was normal, and the examiner indicated that the Veteran did not have radicular pain or other symptoms due to radiculopathy. Likewise, the August 2016 VA examination indicated that muscle strength testing was normal with no muscle atrophy, sensory examination was normal, and the examiner indicated that the Veteran did not have radiculopathy any neurological abnormalities associated with his service-connected cervical spine disability. The examiner then noted that testing showed no electrodiagnostic evidence for C4-8 radiculopathy on either side, but there were mild conduction abnormalities in the bilateral nerves, consistent with mild focal neuropathy about the elbow without evidence of denervation. Finally, while the February 2019 VA examiner eventually concluded that the Veteran experienced right upper extremity radiculopathy associated with his cervical spine disability, the examiner nevertheless noted that muscle strength testing was normal; that reflex and sensory examinations were normal; and the Veteran’s symptoms included only mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner then noted that the Veteran’s right upper radicular groups was involved, and that it resulted in mild incomplete paralysis. The Board finds that this evidence supports no more than a 20 percent disability rating throughout the appeal period for mild incomplete paralysis of the right upper extremities. Insofar as the evidence discussed above also addresses the Veteran’s left upper extremity, the Board notes that the question of whether a separate compensable rating for neurological manifestations of the upper left extremity associated with the Veteran’s service-connected cervical spine disability is addressed in the remand section below. In summation, after resolving all reasonable doubt in the Veteran’s favor, the Board finds that a separate 20 percent disability rating under Diagnostic Code 8513 for neurological manifestations in the right upper extremity associated with the Veteran’s service-connected cervical spine disability is warranted, effective May 20, 2011. However, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran’s cervical spine disability; and the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s right upper extremity radiculopathy. Because the preponderance of the evidence is against higher ratings at any point during the appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Service-Connection Left Knee Disability and Scars In the August 2018 remand, the Board directed the AOJ request from the Veteran all necessary authorizations to allow it to obtain any treatment records related to his left knee arthroscopic surgery, as well as any treatment records from a Dr. Rizzo, the Veteran’s chiropractor. In February 2019, the AOJ sent the Veteran a letter requesting that he identify any outstanding private treatment records, including “treatment from Dr. Rizzo for the left knee arthroscopic surgery.” A February 2019 VA Form 27-0820, Report of General Information, notes that the Veteran called to inform the AOJ that Dr. Rizzo did not perform his left knee arthroscopic surgery, that Dr. Rizzo had passed away a long time ago, that there was no way to obtain the outstanding treatment records, and that the records were probably destroyed. Thereafter, in a September 2020 VA Form 21-6789, Deferred Rating Decision, the AOJ noted that it had not properly requested the treatment records related to the Veteran’s left knee arthroscopic surgery. Instead, the AOJ recognized that it had confused Dr. Rizzo, the Veteran’s chiropractor, as being the medical professional who performed the left knee arthroscopic surgery, and that the records of the left knee surgery still needed to be requested. Thereafter, however, the AOJ did not request the records (or the necessary authorizations) from the Veteran. Thus, because any outstanding private treatment records related to the Veteran’s left knee arthroscopic surgery may be pertinent to his claims on appeal, on remand, the AOJ must take appropriate efforts to obtain them. If necessary, the AOJ should once again request that the Veteran submit the necessary authorization to allow VA to obtain any outstanding records related to his left knee arthroscopic surgery. See 38 C.F.R. § 3.159 (2019). The AOJ should also obtain any updated VA treatment records from the VA Medical Centers (VAMCs) in Altoona, Pennsylvania and Pittsburg, Pennsylvania. In the August 2018 remand, the Board also noted that the most recent VA knee examination was insufficient to adjudicate the Veteran’s claim in light of the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), and it remanded the Veteran’s claims for a new VA examination. The Veteran underwent a VA examination in February 2019, and he reported flare-ups four to five times per week. In addition to pain, the Veteran reported problems with weight bearing. Thereafter, the examiner noted that the examination was not being conducted during a flare. The examiner then stated that pain would significantly limit the Veteran’s functional ability during fare-ups; however, the examiner stated that she could not describe the functional loss in terms of range of motion. She then stated that, although he was expected to have additional loss when suffering from pain, the loss would depend on the activity and the severity of the pain. Given the Court’s holding in Sharp, the Board finds that the February 2019 VA examination report and its conclusion concerning the Veteran’s functional impairment during flare-ups is insufficient to adjudicate the claim on appeal. Significantly, although the examiner indicated that the Veteran was expected to have additional loss when suffering from pain, and that the loss would depend on the activity and the severity of the pain, there is no indication that the examiner attempted to solicit from the Veteran a description of any loss of motion. Thus, to ensure substantial compliances with the August 2018 remand directives, the Veteran should be scheduled for a new VA examination to assess the current nature and severity of his service-connected left knee disability. 2. Service-Connected Lumbar Spine Disability and Associated Neurological Impairments; Left Upper Extremity Neurological Impairments In August 2018, the Board remanded the Veteran’s claims for higher initial ratings for his service-connected cervical spine and lumbar spine disabilities to the AOJ for additional development. Initially, the Board noted in its Remand that, despite evidence of neurological symptoms associated with the Veteran’s cervical spine, including a November 2015 private diagnosis of cervical radiculopathy, the prior VA examination did not address any possible neurological manifestations associated with his cervical spine. Likewise, with regard to any neurological manifestations associated with his lumbar spine disability, the Board noted that a January 2012 VA treatment record indicated that he experienced bladder urgency secondary to incomplete emptying, and that other treatment records noted the Veteran’s report of hip pain. With regard to his lumbar spine disability, the Board also noted that the most recent VA lumbar spine examination was insufficient to adjudicate the Veteran’s claim in light of the Court’s holding in Sharp, supra. Thus, the Board remanded the Veteran’s claims for new VA examinations. The Veteran underwent VA examinations in February 2019. Although he examination results provided are sufficient to adjudicate the Veteran’s claims for higher ratings for his service-connected cervical spine disability and right upper extremity, the results are insufficient to adjudicate his claims for higher ratings for his service-connected lumbar spine disability and associated neurological impairments, as well as his claim for a separate compensable rating for neurological manifestations of the left upper extremity associated with the Veteran’s service-connected cervical spine disability . With regard to the Veteran’s claim for a separate compensable rating for neurological manifestations of the left upper extremity, although the examiner indicated that he experienced mild incomplete paralysis of the right upper radicular group, the examiner did not discuss potentially relevant evidence indicating a neurological impairment in the left upper extremity. For example, a January 2012 VA treatment record noted decreased sensation in the C4 and C5 distribution, and he was diagnosed with foraminal stenosis at C3-C4, and protrusion at C4-C5 with radiculopathies at C4-C5 due to his sensory loss. A February 2012 VA treatment record noted that the Veteran’s cervical spine pain radiated into both shoulders. A May 2016 VA treatment record noted the Veteran was experiencing progressively worsening pain with intermittent weakness and numbness in the left upper extremity. A July 2016 private treatment record noted the diagnosis of cervical radiculopathy. A December 2017 VA treatment record noted the Veteran’s report of pain in his neck with radiation into both shoulders. A November 2018 VA treatment record noted an impression paracervical myalgias. Subsequent to the February 2019 VA examination, a September 2020 VA treatment record notes the Veteran’s report of feeling like he was experiencing bed bugs in his upper arms and shoulders. He was assessed with peripheral neuropathy. With regard to the Veteran’s lumbar spine disability, although the February 2019 VA examiner indicated that the Veteran experienced mild incomplete paralysis of the left sciatic nerve, the examiner failed to address the significance, if any, of the January 2012 VA treatment record that indicated that he experienced bladder urgency secondary to incomplete emptying, and whether such was a neurological manifestation associated with his lumbar spine disability. Furthermore, the February 2019 VA examination fails to adequately address the level of functional impairment experienced by the Veteran during flare-ups. During the examination, he reported experiencing flare-ups three times a week, and he stated that they lasted four to five hours at a time. He also stated that, during flare-ups he experienced a limitation of bending and twisting, that he could not sit for prolonged periods of time, and that he would have to get up and walk. He stated that his symptoms were relieved by lying down and taking a hot shower. Later, the examiner noted that the Veteran was not being examined during a flare up, but that pain and fatigue would significantly limit his functional ability during flare ups. The examiner then estimated the Veteran’s range of motion would stay the same during a flare up. In an accompanying opinion, the examiner noted that he exhibited no additional loss of motion following repetitive use testing. Significantly, the examiner’s estimation that the Veteran’s range of motion would stay the same during a flare up, without additional explanation as to how this conclusion was reached, is not adequately supported, given the examiner’s prior notation within the same report that pain and fatigue would significantly limit his functional ability during flare ups, or the Veteran’s lay statements that, during flare-ups, he experienced a limitation of bending and twisting. Thus, to ensure an adequate record upon which to decide the Veteran’s claims, and to ensure substantial compliances with the August 2018 remand directives, the Veteran should be scheduled for new VA examination to assess the current nature and severity of his service-connected lumbar spine disabilities, to include any associated neurological impairment, as well as any neurological impairment of the left upper extremity associated with his service-connected cervical spine disability. 3. TDIU As noted in the August 2018 remand, the Veteran’s claim for a TDIU is inextricably intertwined with his other claims on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board will defer consideration of this issue at this time. The matters are REMANDED for the following action: 1. Associate with the claims file any updated VA treatment records from the VAMCs in Altoona, Pennsylvania and Pittsburg, Pennsylvania. 2. Give the Veteran another opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file, to include the records associated with his left knee arthroscopic surgery. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. Schedule the Veteran for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected left knee disability. The entire record must be made available to, and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his service-connected left knee disability. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following: a) The examiner should describe all symptoms associated with the Veteran’s service-connected left knee disability. b) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use. The Veteran should be asked to identify the frequency, severity and duration of flare-ups, if any. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use, to include any loss of range of motion. c) If the examination does not occur during a flare-up or following repetitive use, based upon the evidence of record, and the information elicited on examination, the examiner should estimate range of motion loss during a flare-up and/or after repetitive use, if any. If an estimate cannot be provided based on the information provided by the Veteran and the contemporaneous medical evidence available, the examiner should state so clearly and provide a detailed explanation as to whether such estimates would be unknowable to the medical community to any degree of medical certainty, in spite of such evidence. See Sharp, supra. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 4. Schedule the Veteran for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected lumbar spine disability, to include any associated neurological impairments, as well as any neurologic impairment of the left upper extremity associated with his service-connected cervical spine disability. The entire record must be made available to and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his service-connected lumbar spine disability, to include his reports of neurological manifestations including radicular symptoms in his lower extremities and any associated bladder impairment, as well as any neurological manifestations including radicular symptoms in his left upper extremity. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following: a) The examiner should describe all symptoms associated with the Veteran’s service-connected lumbar spine disability, to include any associated neurological manifestations; as well as any neurological manifestations in his left upper extremity associated with his cervical spine disability. With regard to the Veteran’s lumbar spine disability, the examiner should consider a January 2012 VA treatment record indicating that the Veteran experienced bladder urgency secondary to incomplete emptying, as well as other treatment records noting the Veteran’s report of hip pain. With regard to neurological manifestations in his left upper extremity associated with his cervical spine disability, if any, the examiner should consider the following: -A January 2012 VA treatment record noting decreased sensation in the C4 and C5 distribution, and he was diagnosed with foraminal stenosis at C3-C4, and protrusion at C4-C5 with radiculopathies at C4-C5 due to his sensory loss. -A February 2012 VA treatment record noting that the Veteran’s cervical spine pain radiated into both shoulders. -A May 2016 VA treatment record noting that the Veteran was experiencing progressively worsening pain with intermittent weakness and numbness in the left upper extremity. -A July 2016 private treatment record noting the diagnosis of cervical radiculopathy. -A December 2017 VA treatment record noting the Veteran’s report of pain in his neck with radiation into both shoulders. -A November 2018 VA treatment record noting an impression paracervical myalgias. -A September 2020 VA treatment record noting the Veteran’s report of feeling like he was experiencing bed bugs in his upper arms and shoulders, and the assessment of peripheral neuropathy. b) The examiner should ask the Veteran to report any range of motion loss during flare-ups of the lumbar spine or following repeated use. The Veteran should be asked to identify the frequency, severity and duration of flare-ups, if any. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use, to include any loss of range of motion. c) If the examination does not occur during a flare-up or following repetitive use, based upon the evidence of record, and the information elicited on examination, the examiner should estimate range of motion loss of the lumbar spine during a flare-up and/or after repetitive use, if any. If an estimate cannot be provided based on the information provided by the Veteran and the contemporaneous medical evidence available, the examiner should state so clearly and provide a detailed explanation as to whether such estimates would be unknowable to the medical community to any degree of medical certainty, in spite of such evidence. See Sharp, supra. d) For any identified neurological impairment associated with the Veteran’s left upper extremity and/or his bilateral lower extremities, the examiner should indicate whether there is complete or incomplete paralysis of the affected nerve(s) and, if so, the examiner should describe the severity of the impairment as mild, moderate, moderately-severe, or severe. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. (Continued on Next Page) 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated, to include entitlement to a TDIU. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.