Citation Nr: 21008205 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 13-29 615 DATE: February 12, 2021 ORDER Entitlement to service connection for a bilateral hip disability as secondary to service-connected disabilities is denied. Entitlement to service connection for a bilateral knee disability as secondary to service-connected disabilities is denied. Entitlement to service connection for a bilateral ankle disability as secondary to service-connected disabilities is denied. REMANDED Entitlement to an initial rating higher than 10 percent prior to June 17, 2013, and higher than 20 percent thereafter, for the service-connected cervical spine disability, is remanded. Entitlement to an initial rating higher than 20 percent prior to August 22, 2018, and higher than 40 percent thereafter, for the service-connected thoracic discogenic disease, is remanded. Entitlement to service connection for bilateral upper extremity neurological impairment, to include as secondary to service-connected cervical spine disability, is remanded. Entitlement to service connection for bilateral lower extremity neurological impairment, to include as secondary to service-connected thoracic discogenic disease, is remanded. Entitlement to a total disability evaluation based on individual unemployability due to the veteran’s service- connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the currently diagnosed bilateral hip disability is related to service or was caused or aggravated by a service-connected disability. 2. The preponderance of the evidence is against finding that the currently diagnosed bilateral knee disability is related to service or was caused or aggravated by a service-connected disability. 3. The preponderance of the evidence is against finding that the currently diagnosed bilateral ankle disability is related to service or was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a bilateral hip disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 2. The criteria to establish service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 3. The criteria to establish service connection for a bilateral ankle disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to December 1981. In April 2018 and April 2020, the Board remanded the appeal for further development. The case has since returned to the Board for further appellate review. Service Connection – Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). Arthritis is considered a “chronic” disease under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the ‘chronic’ disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Bilateral Hip The Veteran asserts that his bilateral hip disability resulted from his cervical and thoracic spine disabilities due to overcompensation. See e.g., July 2020 statement in support of claim. For the reasons expressed below, the Board finds that service connection is not warranted. The Veteran has a current diagnosis of a bilateral hip disability, which was diagnosed as degenerative arthritis. See e.g., November 2018 VA hip conditions examination report. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of a right and/or left hip disability. Post-service treatment records prior to 2012 are silent for any complaints, treatment, or diagnosis of right and/or left hip disability. Beginning in 2012, the Veteran complained of bilateral hip pain as well as other joint pain. Neither the Veteran nor the medical professional related these complaints to service. In the November 2017 substantive appeal, the Veteran asserted that his bilateral hip disability resulted from all the weight that he had to lift as a result of his military occupational specialty of Hawk Missile Crewman. In November 2018, the Veteran underwent a VA hip conditions examination, at which time the examiner rendered a diagnosis of bilateral hip degenerative arthritis. The Veteran reported that the hip condition began years earlier and was described as intermittent with localized lateral pain. After review of the claims file and examination of the Veteran, the examiner opined that the bilateral him condition as less likely than not related to service. The examiner reasoned that the service treatment records were silent for any complaints and that the manifestation of symptoms years later and current findings were likely due to natural aging process. In a December 2018 addendum, the examiner opined that based on review of the records the bilateral hip disability was unrelated to the Veteran’s service-connected disabilities. The examiner explained that those disabilities were different disease entities with different pathophysiological process unrelated to each other. The examiner added that medical literature did not support a causal relationship between these conditions and the diagnosed bilateral hip arthritis and added that each condition was intrinsic of its anatomical area. The examiner concluded that the evidence supported that the bilateral hip arthritis was due to the natural aging process of individuals older than 40. In a May 2020 addendum opinion, the VA examiner included the medical literature referenced in the 2018 opinions in support of the conclusion that the osteoarthritis was due to natural aging process. In addition, the examiner explained that the 2018 bilateral hip x-rays showed osteoarthritis commensurate with the Veteran’s age. There was no clinical evidence suggesting that the diagnosed arthritis was due to any service-connected disability as both hips were separate entities and due to natural aging process. The examiner further explained that review of the records showed no evidence that any of the service-connected disabilities caused significant abnormal gait or leg length discrepancy that would affect the displacement of the center of gravity of the body to cause an effect on the hip condition. For the same reasons, the examiner also concluded that there was no evidence of an aggravating effect on the hips condition due to the service-connected disabilities. As discussed above, arthritis is a chronic disease; however, in the present case, neither the Veteran nor the medical evidence suggest that the currently diagnosed arthritis had its onset during service or that symptoms of the condition have been continuous since separation from service. In fact, the first notation of hip problems was not until 2012 and diagnosis of arthritis was not confirmed until 2018, over three decades after separation from active duty. There is no lay nor medical evidence showing that symptoms of the claimed hip condition have been continuous since separation from active duty. Specifically, the Veteran mentioned no hip problems in his initial claim for service connection for lumbar and cervical spine in 2010. Accordingly, service connection on a presumptive basis is not warranted. Service connection is also not warranted on direct basis. As noted above, the VA examiner who examined the Veteran in 2018 opined that the evidence suggested that the osteoarthritis was age related. The Board previously found this opinion inadequate because the referenced medical literature was not associated with the opinion; however, in the 2020 addendum, the examiner cited to specific literature and provided portions of the literature in explaining why the findings in this specific Veteran were more likely than not due to age and not his military service. While the Veteran asserted that his bilateral hip conditions are related to service, he is a lay person, and, while competent to relate observable symptoms such as pain, he is not competent to relate a medically complex disorders to his military service, as he does not possess the requisite medical knowledge, training, or experience to do so. Moreover, a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). On the contrary, the Board assigns higher probative weight to the 2018 and 2020 examiners’ opinions. The examiners explained that even accepting the Veteran’s lay reports, the evidence as a whole suggests that the arthritis is age-related. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical or competent lay opinion of record. The Board finds that the probative medical evidence outweighs the lay assertions in this case. Additionally, service connection is also not warranted on a secondary basis. In this regard, as discussed above, the examiners opined that the hip condition was not caused by, aggravated by, or otherwise related to his service-connected disabilities. In this regard, the examiners explained that there was no evidence of abnormal gait severe enough to cause or aggravate a hip condition. As with direct service connection, there is no contrary medical or competent lay opinion of record. The weight of the competent and credible evidence demonstrates no relationship between the Veteran’s diagnosed bilateral hip disability and active duty service or a service-connected disability. For these reasons, the Board finds that a preponderance of the evidence is against the claim, on direct, presumptive, and secondary bases, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bilateral Knee The Veteran asserts that his bilateral knee disability resulted from his cervical and thoracic spine disabilities due to overcompensation. See e.g., July 2020 statement in support of claim. Regarding the left knee, the Veteran indicated that the in-service injury sustained in 1979 caused the currently diagnosed disability. The Veteran has a current diagnosis of a bilateral knee disability, which was diagnosed as knee joint osteoarthritis. See e.g., December 2014 and November 2018 VA knee conditions examination reports. For the reasons expressed below, the Board finds that service connection is not warranted. Service treatment records dated in March 1979 the Veteran complained of left knee pain after sustaining trauma. The medical professional noted pain, tenderness, and reduced range of motion. No additional treatment for right and/or left knee conditions was noted during service, and in December 1981, the Veteran indicated that he was in good health. Post-service treatment records prior to 2014 are silent for any complaints, treatment, or diagnosis of right and/or left knee disabilities. In December 2014, the Veteran underwent a VA knee examination, at which time the examiner confirmed a diagnosis of bilateral knee joint osteoarthritis. The Veteran reported constant bilateral knee pain that was worse with walking or during cold and rainy days. Range of motion was slightly decreased in both knees. After review of the record and examination of the Veteran, the examiner opined that the claimed condition was less likely than not related to service. The examiner reasoned that while there was evidence of an isolated complaint of left knee pain during service, there was no additional treatment or complaints regarding the left knee until many years after discharge from service. The examiner added that an August 2012 treatment record showed no complaints of right and/or left knee condition. The examiner concluded that the osteoarthritis shown by x-rays was part of the normal aging process. In November 2018, the Veteran underwent an additional VA knee examination, at which time the diagnosis of bilateral knee osteoarthritis was confirmed. The Veteran reported bilateral knee pain for the past several years. After review of the record and examination of the Veteran, the examiner opined that the condition was less likely than not related to service. The examiner reasoned that the present bilateral osteoarthritis was part of the normal aging process and not related to the Veteran’s active duty service. The examiner noted that the service treatment records were silent for any right knee complaints or treatment and that the left knee complaint was isolated with no subsequent treatment. The examiner concluded that the current x-ray findings were not related to active duty service. In a December 2018 addendum, the examiner noted that there was no objective evidence that the now claimed bilateral knee condition was caused or aggravated by a service-connected disability as those were different anatomical sites with different pathophysiological process unrelated to each other. In a May 2020 addendum opinion, a VA examiner opined that the bilateral knee disability was less likely than not related to service. The examiner noted that the Veteran reported only several years of knee pain during the 2018 VA examination and that the x-rays showed only mild bilateral knee osteoarthritis. The examiner reiterated that after the March 1979 treatment for a left knee trauma there was no additional treatment for right and/or left knee condition. The examiner concluded that the medical evidence was against finding that the osteoarthritis was caused by service. The examiner further opined that the osteoarthritis was not caused or aggravated by a service-connected disability. The examiner explained that medical literature showed osteoarthritis was most common in the knees, hands, and spine; however, it further noted that an injury in one extremity rarely caused a major problem in the opposite or uninjured extremity except when the damage resulted in a major displacement of the center of gravity of the body while walking, significant shortening of the injured limb, and abnormal gait. These factors were not present in this Veteran. Lastly, regarding aggravation, the examiner indicated that the x-rays specifically showed mild osteoarthritis commensurate with the Veteran’s age and no evidence of aggravation by any of his service-connected disabilities. The examiner supported its conclusion by citing to specific medical literature and providing the relevant parts of the literature in the examination report. As discussed above, arthritis is a chronic disease; however, in the present case, neither the Veteran nor the medical evidence suggest that the currently diagnosed arthritis had its onset during service or that symptoms of the condition have been continuous since separation from service. In fact, the first notation of knee problems post service was not until the Veteran’s claim in 2011. In addition, diagnosis of arthritis was not confirmed until 2014, over three decades after separation from active duty. There is no lay nor medical evidence showing that symptoms of the claimed hip condition have been continuous since separation from active duty. Specifically, the Veteran mentioned no knee problems in his initial claim for service connection for lumbar and cervical spine in 2010 and during the 2014 examination reported knee pain for only several years. Accordingly, service connection on a presumptive basis is not warranted. Service connection is also not warranted on direct basis. As noted above, the VA examiner who examined the Veteran in 2018 opined that the evidence suggested that the osteoarthritis was age related. The Board previously found this opinion inadequate because the referenced medical literature was not associated with the opinion; however, in the 2020 addendum, the examiner cited to specific literature and provided portions of the literature in explaining why the findings in this specific Veteran were more likely than not due to age and not his military service. Specifically, the x-rays showed only mild arthritis even three decades after separation from active duty. While the Veteran asserted that his bilateral knee conditions are related to service, he is a lay person, and, while competent to relate observable symptoms such as pain, he is not competent to relate a medically complex disorders to his military service, as he does not possess the requisite medical knowledge, training, or experience to do so. Moreover, a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). On the contrary, the Board assigns higher probative weight to the 2018 and 2020 examiners’ opinions. The examiners explained that even accepting the Veteran’s lay reports, the evidence as a whole suggests that the arthritis is age-related. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical or competent lay opinion of record. The Board finds that the probative medical evidence outweighs the lay assertions in this case. Additionally, service connection is also not warranted on a secondary basis. In this regard, as discussed above, the examiners opined that the knee condition was not caused by, aggravated by, or otherwise related to his service-connected disabilities. In this regard, the examiners explained that there was no evidence of abnormal gait severe enough to cause or aggravate a knee condition. As with direct service connection, there is no contrary medical or competent lay opinion of record. The weight of the competent and credible evidence demonstrates no relationship between the Veteran’s diagnosed bilateral knee disability and active duty service or a service-connected disability. For these reasons, the Board finds that a preponderance of the evidence is against the claim, on direct, presumptive, and secondary bases, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bilateral Ankle The Veteran asserts that his bilateral ankle disability is related to service or alternatively was caused or aggravated by his cervical spine, thoracic spine, or right foot disabilities due to overcompensation. See e.g., July 2020 statement in support of claim. The Veteran’s service treatment records are silent to any complaints, treatment, or diagnosis of right and/or left ankle condition. Post-service treatment records prior to October 2012 are silent for any complaints, treatment, or diagnosis of an ankle condition. The Veteran did not mention an ankle condition when he filed his initial service connection claim for cervical and thoracic spine disabilities. According to October 2012 private treatment records, the Veteran complained of right ankle pain since 1979 after a third metatarsal fracture sustained in service. Range of motion of the right ankle was normal and the private physician only rendered a diagnosis and positive opinion regarding the right foot disability. According to March 2018 VA treatment records, the Veteran complained of bilateral ankle pain. In November 2018, the Veteran underwent a VA ankle conditions examination, at which time the examiner rendered a diagnosis of bilateral tiny calcaneal spurs by x-ray. The Veteran reported that he had bilateral ankle pain since 2010. Range of motion of both ankles was normal. After review of the record and examination of the Veteran, the examiner opined that the claimed condition was less likely than not related to service. The examiner reasoned that there was no evidence of complaints, treatment, or diagnosis of right and/or left ankle disability during service and that the present condition did not start until many years after discharge from service. In a December 2018 addendum, the VA examiner opined that the bilateral ankle disability was less likely than not proximately due to or the result of a service-connected condition. The examiner explained that by definition the claimed ankle conditions and the already service-connected lumbar, neck, and right foot disabilities had different anatomical sites with different pathophysiological process unrelated to each other. In a May 2020 addendum opinion, a VA examiner again opined that the diagnosed bilateral ankle disability is not related to service or a service-connected disability. the examiner reasoned that the etiology of spurs has been debated and heredity, metabolic disorders, tuberculosis, systemic inflammatory diseases, and other disorders were considered as possible causes. The examiner added that current reasoning was that abnormal biomechanics (excessive or abnormal pronation) was the prime etiological factor for a painful plantar heel and inferior calcaneal spur. The spur was thought to be a result of the biomechanical fault and an incidental finding when associated with a painful plantar heel. The most common etiology was thought to be abnormal pronation, which results in increased tension forces within the structures that attach in the region of the calcaneal tuberosity. Asymptomatic heel spurs were relative common in normal adult population. One epidemiologic study found that 11 percent of adults in the United States developed a calcaneal spur, which showed up on incidental radiographic finding. The examiner provided the medical literature supporting this opinion. The examiner further opined that the diagnosed bilateral ankle disability was not caused by or aggravated by a service-connected disability. The examiner reasoned that the medical evidence showed no indication that a service-connected disability caused the bilateral ankle spurs. Specifically, the x-ray evidence of both ankles showed only tiny calcaneal spurs, bilaterally, and such condition increased with age and was not caused or aggravated by a service-connected disability. On review, service connection is not warranted on direct basis. As noted above, the examiner who provided the May 2020 addendum opinion cited to specific literature and provided portions of the literature in explaining why the findings in this specific Veteran were more likely than not due to age and not his military service. Specifically, the x-rays showed only tiny calcaneal spurs even three decades after separation from active duty and there was nothing in service to suggest that the Veteran injured his right ankles during that time. In fact, the Veteran himself reported that his bilateral ankle pain was not present until 2010, years after separation from service. While the Veteran asserted that his bilateral ankle conditions are related to service, he is a lay person, and, while competent to relate observable symptoms such as pain, he is not competent to relate a medically complex disorders to his military service, as he does not possess the requisite medical knowledge, training, or experience to do so. Moreover, a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). On the contrary, the Board assigns higher probative weight to the 2018 and 2020 examiners’ opinions. The examiners explained that even accepting the Veteran’s lay reports, the evidence as a whole suggests that the ankle spurs were age-related. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical or competent lay opinion of record. The Board finds that the probative medical evidence outweighs the lay assertions in this case. Additionally, service connection is also not warranted on a secondary basis. In this regard, as discussed above, the examiners opined that the ankle condition was not caused by, aggravated by, or otherwise related to his service-connected disabilities. In this regard, the examiners explained that the spurs were an incidental finding that was not related to any of the Veteran’s service-connected disabilities. As with direct service connection, there is no contrary medical or competent lay opinion of record. The weight of the competent and credible evidence demonstrates no relationship between the Veteran’s diagnosed bilateral ankle disability and active duty service or a service-connected disability. For these reasons, the Board finds that a preponderance of the evidence is against the claim, on direct and secondary bases, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND In its most recent remand, the Board remanded the claims for increased rating for cervical spine disability and thoracic discogenic disease for new examination that would comply with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, due to the Covid-19 pandemic, a physical examination was not conducted, and the responses received in the May 2020 addendum are insufficient to decide the claim on the merits. Accordingly, a remand is necessary to provide the Veteran with new VA examinations. Regarding the claims for bilateral upper and lower extremity neurological impairment, the Board finds that these claims are intertwined with the increased rating claims being remanded. Lastly, the issue of entitlement to a TDIU is also inextricably intertwined with the issues being remanded because the Veteran currently does not meet the schedular criteria for a TDIU throughout the entire rating period on appeal. These matters are REMANDED for the following actions: 1. Provide the Veteran with a VA examination to help identify the current severity of the cervical spine disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the cervical spine disability throughout the pendency of the appeal. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. (d) Determine whether the Veteran has a right and/or left upper extremity neurological impairment related to the service-connected cervical spine disability. In doing so, specifically address the Veteran’s competent reports of numbness and tingling in the tips of the fingers. A complete rationale should be provided for all opinions. 2. Provide the Veteran with a VA examination to help identify the current severity of the thoracic discogenic disease disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the thoracic discogenic disease disability throughout the pendency of the appeal. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. (d) Determine whether the Veteran has a right and/or left lower extremity neurological impairment related to the service-connected thoracic discogenic disease disability. In doing so, specifically address the Veteran’s competent reports of numbness and tingling in the feet as well as evidence of decreased strength in the lower extremities as shown private treatment records dated in October 2012. A complete rationale should be provided for all opinions. 3. Thereafter, readjudicate the remanded claims, to include entitlement to a TDIU. Michael L. Marcum Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, Associate 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.