Citation Nr: 21013401 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 10-22 664A DATE: March 9, 2021 REMANDED Entitlement to a rating in excess of 10 percent for service-connected left knee strain is remanded. Entitlement to a rating in excess of 20 percent prior to May 14, 2010, and from August 1, 2010, for service-connected lumbar spine strain with arthritis is remanded. Entitlement to a rating greater than 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2000 to June 2002. In August 2012, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of hearing is associated with the claims file. In April 2013, the Board remanded the case for further development, including for the Regional Office (RO) to obtain outstanding records and for VA examinations and medical opinions. Subsequently, in a June 2015 rating decision, the RO granted service connection for lower left radiculopathy as secondary to the Veteran’s service-connected lumbar spine strain with arthritis, and assigned a 20 percent rating effective July 1, 2009. In April 2017, the Board remanded the case for further development of the record, to include scheduling the Veteran for a second videoconference hearing and for new examinations and medical opinions. In July 2018, the Veteran testified at a videoconference hearing before a second VLJ. A transcript of hearing is associated with the claims file. VLJs who conduct hearings must participate in making the final determination of a claim. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. Where two VLJs hold hearings on the same issue, a three-judge panel is assigned, and the Veteran must be afforded an opportunity for a third hearing before the third VLJ who will ultimately decide the appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In this case, two VLJs have held a hearing on the same issues now on appeal (entitlement to a disability evaluation in excess of 20 percent for lumbar spine strain with arthritis, entitlement to a disability evaluation in excess of 10 percent for left knee strain, and entitlement to a TDIU). During the July 2018 hearing, the Veteran was informed of his option to have an additional hearing before a third VLJ. The Veteran responded in a July 2018 letter that he waived his right to appear at an additional hearing before a third VLJ. In November 2018, the Board remanded the case for further development of the record, to include scheduling the Veteran for new examinations and medical opinions. Unfortunately, remand is again required. 1. Entitlement to a rating in excess of 10 percent for service-connected left knee strain. During the July 2018 Board hearing, the Veteran asserted that his left knee disability had increased in severity since he was last examined by VA in May 2017. The Board directed the agency of original jurisdiction (AOJ) to schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner was directed to attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The Veteran underwent VA examination in December 2019. The Veteran reported flare-ups of his left knee once every three to four weeks that lasted for three to four hours in duration and were aggravated by climbing stairs and heavy lifting. Flare-ups were alleviated by ice packs, and the Veteran reported that these flare-ups limited repetitive climbing. Upon examination, the examiner noted that the Veteran had flare-ups of the left knee with pain causing functional loss but opined that the Veteran’s pain during flare-ups did not further limit the range of motion. The Board notes that VA treatment records and VA examination reports consistently indicate the Veteran’s report of additional limitation of motion and other functional impairment during flare-ups. See July 2009 VA Examination Report (noting functional impairment during flare-up described as limitation of motion – small range allowed); February 2010 VA Neurosurgery Resident Note (reporting bilateral knee weakness and gait instability during flares); May 2011 VA Pain Clinic Follow-up (indicating the necessary use of knee braces during flare-ups); September 2011 VA Examination Report (noting that during flare-ups the Veteran reported limitation of motion and stated that he could not bend his knee easily); September 2013 VA PT Evaluation (noting limited walking distance due to pain increase during flare); May 2017 VA Examination Report (noting that reported swelling during flare-ups resulted in less range of motion.) While the December 2019 VA examiner assessed the Veteran’s reports of flare-ups, the Board notes that this assessment does not appear to be consistent with the Veteran’s historical and present description of flare-ups, both during VA examination and upon VA treatment. Further, the December 2019 VA examiner provided no additional discussion reconciling these seemingly disparate descriptions. The Board finds that, due to the distinctive findings between the December 2019 VA examination and previous VA treatment records and VA examinations regarding increased limitation of motion and other functional impact during flare-ups, remand is warranted so that the functional impact of the Veteran’s reported flare-ups can be adequately assessed. 2. Entitlement to a rating in excess of 20 percent prior to May 14, 2010, and from August 1, 2010, for service-connected lumbar spine strain with arthritis is remanded. In its November 2018 decision, the Board directed the AOJ to obtain an opinion to clarify the severity, frequency, and duration of any flare-ups of the Veteran’s lumbar spine disability. In addition to attempting to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, the examiner was asked to specifically discuss whether the Veteran had been prescribed bed rest by a physician as treatment for his back, as the Veteran so testified at his July 2018 hearing. The Veteran underwent VA examination in December 2019. The Veteran endorsed flare-ups of his lumbar spine two to three times per week lasting approximately four hours. These flare-ups were triggered by physical exertion, bending, twisting, and climbing, and were alleviated by ice packs, a TENS unit, and pain medications. The Veteran reported that these flare-ups limited repetitive bending. The examiner noted that the Veteran had flare-ups of the lumbar spine with pain causing functional loss but opined that the Veteran’s pain during flare-ups did not further limit the range of motion. Additionally, the examiner checked the “no” box as to the Veteran had intervertebral disc syndrome (IVDS) and episodes requiring bed rest. The Veteran, again, underwent VA examination in February 2020. The Veteran endorsed flare-ups of the lumbar spine that occurred two to five times per week that were severe in nature and lasted three to five days in length. These flare-ups were trigged by testing, bending, and squatting, and were alleviated by rest and pain medication. The examiner noted that the Veteran did not report having any functional loss or functional impairment of the lumbar spine; and upon examination, the examiner stated that pain, weakness, and/or incoordination did not significantly limit functional ability during flare-ups. The examiner checked the “no” box as to the Veteran had intervertebral disc syndrome (IVDS) and episodes requiring bed rest While neither the December 2019 nor the February 2020 VA examiner specifically discussed whether the Veteran had been prescribed bed rest by a physician, the Board notes that a review of VA treatment records contains no physician-prescribed bedrest as the Veteran so testified at his July 2018 Board hearing. On remand, the Veteran should be afforded an opportunity to identify any pertinent evidence, to include reports showing physician-prescribed bedrest. Further, the Board notes that VA treatment records and VA examination reports consistently indicate the Veteran’s report of additional limitation of motion and other functional impairment during flare-ups. See July 2009 VA Examination Report (indicating limited range of motion and decreased strength during flare-up); October 2010 VA Examination (describing functional impairment during flare-ups to include limping, loss of balance, temporary paralysis, extreme pain and limitation of motion that will not allow him to ascend/descend stairs, sit for long periods, or lift any heavy objects); February 2010 VA Neurosurgery Resident Note (reporting bilateral knee weakness and gait instability during flares); May 2011 VA Pain Clinic Follow-up (noting the necessary use of lumbar corset during flare-ups with left side subjective weakness with foot drag); December 2012 VA Chiropractic Note (flare-up pain described as radiating electric shock); December 2015 VA Primary Care Note (prescribing increased pain medication for increased pain during flares); May 2017 VA Examination (reporting radiating shock-like pain during flares); December 2017 VA Examination (indicating that flares significantly limit functional ability due to pain). While the December 2019 and February 2020 VA examiners assessed the Veteran’s reports of flare-ups, the Board notes that these assessments do not appear to be consistent with the Veteran’s historical and present description of flare-ups, both during VA examination and upon VA treatment. Further, neither VA examiner provided additional discussion reconciling these seemingly disparate descriptions. The Board finds that, due to the distinctive findings between the December 2019 and February 2020 VA examination and previous VA treatment records and VA examinations regarding increased limitation of motion and other functional impact during flare-ups, remand is warranted so that the functional impact of the Veteran’s reported flare-ups can be adequately assessed. 3. Entitlement to a rating greater than 20 percent for radiculopathy of the left lower extremity is remanded. The evidence obtained upon completion of the development ordered above could significantly impact the final decision on the issues of entitlement to a higher rating for service-connected lower left radiculopathy, the issues are inextricably intertwined. A remand of the claim is required. Further, VA treatment records indicate that the Veteran underwent anterior lumbar interbody fusion (ALIF) surgery in October 2019 with an incision to the lower abdomen. See October 2019 VA Critical Care RN Note. The Veteran reported an improvement in his left lower extremity radiculopathy following surgery. See December 2019 VA Neurosurgery Note (indicating an improvement of 50 to 55 percent following surgery); see also January 2020 VA Neurosurgery Nurse Practitioner Note (indicating that the Veteran’s left lower extremity pain was almost completely resolved following surgery.) Upon VA examination in December 2019, the examiner noted moderate intermittent pain (usually dull), mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity with involvement of the left sciatic nerve. Upon examination in February 2020, the examiner noted that the Veteran did not have any lower extremity radiculopathy. As VA treatment records suggest an overall improvement of the Veteran’s left lower extremity radiculopathy, the February 2020 VA examiner findings may be appropriate. However, due to other inconsistencies between the December 2019 and February 2020 examination, including the identification, or lack thereof, of abdominal scarring following ALIF surgery, the Board finds that upon remand, an additional opinion should be sought to clarify the current severity of the Veteran’s left lower extremity radiculopathy. (Continued on Next Page) 4. Entitlement to a TDIU is remanded. The evidence obtained upon completion of the development ordered above could significantly impact the final decision on the issue entitlement to a TDIU due to service-connected disabilities, the issues are inextricably intertwined. A remand of the claim is required. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any relevant private and VA treatment records not already associated with the claims file, to include reports showing physician-prescribed bed rest. Take the necessary steps to obtain any identified records, and note any and all attempts to obtain these records in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should estimate range of motion loss during flare-ups and after repetitive use, if any. If the examiner finds that the Veteran experiences no range of motion loss during flare-ups, this should be made clear, and reconciled with the Veteran’s prior reports of experiencing limitation of motion during flares or after repetitive use, referenced in the body of this Remand above. If the Veteran no longer experiences flare-ups, such should be noted. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. 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. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should estimate range of motion loss during flare-ups and after repetitive use, if any. If the examiner finds that the Veteran experiences no range of motion loss during flare-ups, this should be made clear, and reconciled with the Veteran’s prior reports of experiencing limitation of motion during flares or after repetitive use, referenced in the body of this Remand above. If the Veteran no longer experiences flare-ups, such should be noted. (Continued on the next page)   In addition, the examiner should assess the severity of any associated neurological abnormalities, to include the Veteran’s service-connected left lower extremity radiculopathy, and any associated right lower extremity radiculopathy symptoms that may exist. If the Veteran no longer experiences lower extremity radiculopathy in either leg, such should be indicated and explained. 4. Then, readjudicate the issues on appeal. If the benefits sought are not granted in full, issue the Veteran a Supplemental Statement of the Case. H. Seesel Veterans Law Judge Board of Veterans’ Appeals K. Parakkal Veterans Law Judge Board of Veterans’ Appeals V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.