Citation Nr: 21007493 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-11 824 DATE: February 9, 2021 REMANDED From October 5, 2010 to September 19, 2012, entitlement to a rating greater than 10 percent for degenerative disc disease, lumbar spine, is remanded. From September 20, 2012, to April 8, 2014, entitlement to a rating greater than 20 percent for degenerative disc disease, lumbar spine, is remanded. From April 9, 2014, entitlement to a rating greater than 40 percent for degenerative disc disease, lumbar spine, is remanded. Entitlement to a rating greater than 20 percent for instability, right knee, is remanded. Entitlement to a rating greater than 10 percent for limitation of flexion, right knee, is remanded. Entitlement to an effective date earlier than April 9, 2014 for the grant of a total disability based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from February 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of September 2011 (back and right knee) and October 2012 (TDIU) of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran claimed an increased rating for his right knee in February 2010. He also claimed service connection for his degenerative disc disease, lumbar spine, in October 2010. The AOJ denied an increased rating for his right knee based on instability and service connected his degenerative disc disease, lumbar spine, in September 2011. He appealed the denial of an increased rating and the initial rating assigned for his back in November 2011, and the appeal has been pending ever since. In October 2014, as the right knee appeal was pending, the AOJ service connected an additional right knee disability based upon limitation of flexion. VA has treated this disability rating as part of the right knee appeal, so it too is listed above. The Board considered this appeal for the first time in March 2019. At that point, it found that compensation examinations for both the right knee and back disabilities in June 2017 did not properly account for flareups, in violation of Sharp v. Shulkin, 29 Vet. App. 26 (2017). It therefore remanded for new examinations. VA examined the Veteran in December 2019 for both the right knee and back disabilities. The examiner did not address flareups because the Veteran, in both examinations, denied having flareups. With the appeal now back at the Board, it must reconsider the issues over the decade they have been pending. VA examined the Veteran in June 2010, August 2011, September 2012, May 2014, June 2017, and December 2019 for one or both disabilities. The record is split regarding flareups. The Veteran did not report flareups in June 2010, August 2011, or December 2019, but he did in September 2012, May 2014, and June 2017. To properly rate the disabilities, the Board finds it must order a new examination. This examination will provide the Veteran the opportunity to describe how he is limited during flareups throughout the entire period on appeal and to ensure the compliance with Sharp that the Board discussed in March 2019. The examiner is reminded that for a VA joints examination to be adequate, the examination must portray the extent of the claimant’s functional loss or limitation due to pain and the other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, including such functional loss or limitation with repetitive use and on flare-up. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Where feasible, these determinations should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. DeLuca, 8 Vet. App. at 206; Sharp, 29 Vet. App. 26, 34-35 (2017). When flare-ups are indicated, the examiner must offer a flare opinion based on an estimate derived from information procured from relevant sources, including the lay statements the veteran provides after he is asked to describe functional limitation. When examiners state that they cannot offer a flare opinion without resort to speculation, that opinion is adequate only when it is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. Sharp, 29 Vet. App. at 37. Remand is warranted for two additional reasons. First, the Veteran, in his November 2011 Notice of Disagreement, stated he "was under the influence of Oxycodone pain medication (7.50/325) 7 dosages per day" and that this "masked [his] pain, allowing more movement than usual, thus skewing the examination results." This statement invokes Jones v. Shinseki, 26 Vet. App. 56 (2012). In Jones, the U.S. Court of Appeals for Veterans Claims held that VA committed legal error when it considered the ameliorative effects of medication on the appellant’s disability where those effects were not explicitly contemplated by the rating criteria. Thus, the Court held that where a Diagnostic Code is silent as to the effects of medication, as here, VA may not deny entitlement to a higher disability rating based on the relief provided by medication. Id. Remand is therefore needed to clarify the Veteran's ranges of motion with and without medication. Second, the Board notes that the AOJ granted the Veteran a TDIU, effective April 9, 2014, in an October 2014 rating decision. The Veteran did not file a Notice of Disagreement with this decision, although the Veteran’s representative did request additional consideration of TDIU as the severity of the other issues on appeal were assessed in examinations which the Veteran requested due to worsening symptoms. See November 2014 Statement of Accredited Representative in Appealed Case. That, however, does not end the inquiry. In 2018, the U.S. Court of Appeals for Veterans Claims, in Harper v. Wilkie, 30 Vet. App. 356 (2018), held that when, as here, the issue of entitlement to a TDIU becomes part and parcel of an underlying appeal for a higher disability rating, the grant of a TDIU does not bifurcate the appeal and a Notice of Disagreement does not need to be filed to challenge the effective date assigned for the award of a TDIU. If the grant of a TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the remaining period remains in appellate status. Given the foregoing, the issue of entitlement to an effective date earlier than April 9, 2014 for the grant of a TDIU is on appeal. However, remand is warranted because the TDIU is intertwined with the increased rating claims above. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and severity of his right knee and back disabilities. To comply with Sharp v. Shulkin, 29 Vet. App. 26, (2017), the examiner is asked to describe whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. In addition to the customary examination and Sharp instructions, the examiner must also address the following: a) For the Sharp element of the examination, the examiner must attempt to estimate the loss in range of motion for BOTH the right knee and back disabilities from 2010 to present. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disabilities. b) Additionally, the examiner must identify, with reasonable specificity, the medications the Veteran has used to treat his pain for his right knee and back disabilities. This list does not need to be exhaustive, but the Board needs to understand, at a basic level, what medication he has taken and how much since he filed his claims in 2010. c) Then, the Board needs the examiner to answer the following questions: a. Is it at least as likely as not (50 percent probability) that the Veteran's pain medications (identified in the prior question) provide greater range of motion for the Veteran's right knee disabilities than he would have if he did not take them? Why or why not? b. Is it at least as likely as not (50 percent probability) that the Veteran’s pain medications (identified in the prior question) provide greater range of motion for the Veteran’s back disability than he would have if he did not take them? Why or why not? d) Assuming the answers to (c) are yes, the Board is now tasked with evaluating the difference in the ranges of motion, i.e., with and without medication usage. Therefore, the examiner must attempt to estimate the Veteran's range of motion with medication usage and range of motion without medication usage for BOTH the right knee and back disabilities. e) These estimates should be for the time period from 2010 – present. This is like the request above with Sharp. The Board needs to rate the entire period on appeal, and it recognizes that it is tasking you with a retrospective opinion. f) In opining, base your estimate on information procured from relevant sources, including the lay statements the Veteran provides after he is asked to describe functional limitation. g) If you cannot opine without resort to speculation, state whether that is because of a lack of knowledge among the medical community at large OR because you, and you alone, have insufficient knowledge to so opine. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.