Citation Nr: 21013999 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-46 978 DATE: March 11, 2021 ORDER The application to reopen the claim for service connection for a left ankle condition is granted. The application to reopen the claim for service connection for a right ankle condition is granted. The application to reopen the claim for service connection for a left hip condition is granted. The application to reopen the claim for service connection for a right hip condition is granted. The application to reopen the claim for service connection for irritable bowel syndrome (IBS) is granted. Service connection for IBS is granted. A separate disability rating of 20 percent for left knee instability is granted. A separate disability rating of 20 percent for right knee instability is granted. A separate disability rating of 20 percent for left lower extremity radiculopathy is granted. A separate disability rating of 10 percent for right lower extremity radiculopathy is granted. A temporary total evaluation for convalescence associated with the service-connected low back disability is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome, left knee is remanded. Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome, right knee is remanded. Entitlement to a disability rating in excess of 10 percent for mechanical low back pain for the period prior to December 26, 2019 and 20 percent thereafter is remanded. Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy is remanded Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to a disability rating in excess of 10 percent for gastroesophageal reflux disorder (GERD) is remanded. Entitlement to service connection for a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A July 2010 rating decision denied the Veteran’s claims for service connection for bilateral ankle and bilateral hip conditions. 2. The Veteran did not appeal the July 2010 rating decision and new and material evidence was not added to the record within a year of the decision. Accordingly, the July 2010 rating decision is final. 3. Evidence newly added to the record relates to previously unestablished facts and raises a reasonable possibility of granting the claims for service connection for bilateral ankle and bilateral hip conditions. 4. A July 1999 rating decision denied the Veteran’s claim for service connection for IBS. 5. The Veteran did not appeal the July 1999 rating decision and new and material evidence was not added to the record within a year of the decision. Accordingly, the July 1999 rating decision is final. 6. Evidence newly added to the record relates to previously unestablished facts and raises a reasonable possibility of granting the claim for service connection for IBS. 7. The Veteran has a current diagnosis of IBS and the reasonably credible evidence establishes that his symptoms started in service and have been recurrent since. 8. Throughout the period on appeal, the Veteran’s left knee has been manifested by subjective complaints of instability. 9. Throughout the period on appeal, the Veteran’s right knee has been manifested by subjective complaints of instability. 10. The Veteran’s low back disability has been productive of moderate lower left extremity radiculopathy since April 26, 2017. 11. The Veteran’s low back disability has been productive of mild lower right extremity radiculopathy since April 26, 2017. 12. The Veteran did not have surgery on his low back disability that resulted in a period of convalescence, severe post-operative residuals or immobilization of a joint. CONCLUSIONS OF LAW 1. The July 2010 rating decision that denied service connection for bilateral ankle and bilateral hip conditions is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 2. The criteria for reopening the Veteran’s claims for service connection for bilateral ankle and bilateral hip conditions are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The July 1999 rating decision that denied service connection for IBS is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 4. The criteria for reopening the Veteran’s claim for service connection for IBS are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for IBS are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for a separate disability rating of 20 percent for left knee instability are met. 38 C.F.R. § 4.71a, Diagnostic Code 5257. 7. The criteria for a separate disability rating of 20 percent for right knee instability are met. 38 C.F.R. § 4.71a, Diagnostic Code 5257. 8. The criteria for a separate disability rating of 20 percent for left lower extremity radiculopathy are met effective April 26, 2017. 38 C.F.R. §§ 4.71(a), Note 1; 4.124a, Diagnostic Code 8520. 9. The criteria for a separate disability rating of 10 percent for right lower extremity radiculopathy are met effective April 26, 2017. 38 C.F.R. §§ 4.71(a), Note 1; 4.124a, Diagnostic Code 8520. 10. The criteria for a total temporary evaluation for convalescence associated with the Veteran’s service-connected low back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1994 to December 1998, October 2001 to November 2001 and January 2002 to September 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2015 and November 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2020. A transcript of the hearing is of record. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Generally, the credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Bilateral Ankle and Bilateral Hip Conditions The Veteran’s claims seeking entitlement to service connection for bilateral ankle and bilateral hip conditions were denied in a July 2010 rating decision on the grounds that, among other things, the Veteran did not have any pathology of his ankles or hips so as to establish the existence of current disabilities. The Veteran did not appeal the July 2010 rating decision or submit new and material evidence within a year of the decision. As a result, the July 2010 rating decision is final. 38 C.F.R. § 20.1103. The evidence for service connection for bilateral ankle and bilateral hip conditions considered at the time of the July 2010 rating decision consisted of the Veteran’s service treatment record (STRs), VA examinations conducted in June 2010, the Veteran’s lay statement and VA treatment reports from March 1999 to June 2010. The evidence received since the July 2010 rating decision includes additional lay statements submitted by the Veteran, VA examinations conducted in September 2015, updated VA treatment records and the Veteran’s hearing testimony. The updated VA treatment records note the existence of ankle and hip conditions. Specifically, a September 2017 VA treatment note records a history of osteoarthritis in the Veteran’s ankles and restriction in his bilateral hips. The Veteran also submitted lay statements detailing increasing pain and testified as to the limitation of his daily activities caused by his ankle and hip pain. The evidence is new because it has not been previously submitted. The evidence is material because it relates to the unestablished element of whether the Veteran has current bilateral ankle and hip disabilities. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (pain alone, when causing functional impairment, may constitute a disability for VA compensation purposes, even without an accompanying diagnosis). The Board concludes that the requirements of 38 C.F.R. § 3.156(a) have been met and the claims for service connection for bilateral ankle and hip conditions are reopened. IBS The Veteran’s claim for service connection for IBS was denied in a July 1999 rating decision on the ground that the Veteran did not have a positive IBS diagnosis. The Veteran filed a notice of disagreement to that rating decision and the RO issued a Statement of the Case in January 2000. The Veteran did not file a VA form 9 or submit new and material evidence within 60 days of the SOC and the July 1999 rating decision became final. The evidence for service connection for IBS considered at the time of the July 1999 rating decision included the Veteran’s service treatment records (STRs). The evidence received since the July 1999 rating decision include STRs from the Veteran’s active service after 1999, VA treatment records and the Veteran’s lay statements and hearing testimony. These materials reflect that the Veteran has been diagnosed with IBS. Specifically, a June 2018 VA treatment note documents the Veteran’s history of IBS. The evidence is new because it was not previously submitted. It is material because it relates to the unestablished elements of whether the Veteran has a current IBS disability. Based on the new evidence, there is a reasonable possibility of substantiating the claim. The requirements of 38 C.F.R. § 3.156(a) have been met and the claim for service connection for IBS is reopened. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, as noted VA treatment records contain a diagnosis of IBS, thereby satisfying the first element for service connection. As to the second element, the Veteran’s STRs contain complaints of symptoms including abdominal pain, vomiting and diarrhea. The Veteran complained of abdominal pain for 6 days in August 1996 that was eventually diagnosed as GERD. The Veteran again complained of abdominal pain, vomiting and diarrhea in December 1996. During a September 2001 examination the Veteran noted that he had stomach, liver or intestinal trouble. Based on the foregoing, the Board finds that the second element of service connection has been met. The remaining question is whether there is a causal relationship between the Veteran’s current IBS diagnosis and his in-service symptomatology. VA treatment records reflect that the Veteran had recurrent IBS symptoms following his first period of active duty, starting in April 1999. At that time, VA treatment records noted that the Veteran had chronic abdominal pain for two and a half years and that IBS was considered a differential diagnosis. IBS was noted on the Veteran’s problem list in March 2000. In May 2000, the Veteran was noted to have “possible IBS” that was improved on medication but still included flareups. An October 2005 VA treatment record noted the Veteran had chronic IBS symptoms that were improved with medication but still included irregular bowel movements. The Veteran testified that his symptoms were continuous since service. A December 2019 VA examiner concluded that there was no evidence of IBS and nothing in the STRs to suggest a significant gastrointestinal problem. The examiner opined that it was less likely than not that the Veteran’s reflux was incurred in service. The Board finds this opinion inadequate as the examiner ignored the evidence in the STRs of IBS symptoms, ignored the diagnoses of IBS in the VA treatment records and offered an opinion on whether reflux was incurred in service despite the fact that the Veteran is seeking service connection for IBS and is already service-connected GERD. The Board declines, however, to remand for another VA examination as “[t]he development of evidence in connection with claims of service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination.” 38 C.F.R. § 3.304(c); see Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Here, the STRs reflect IBS symptoms during service, the Veteran has competently and credibly testified as to the continuing nature of his IBS symptoms, and VA treatment records confirm the current diagnosis of IBS and reflect ongoing, chronic IBS symptoms since service. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In light of the competent medical evidence confirming that the Veteran had IBS symptoms since service, the claim for service connection for IBS is granted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). Separate disability ratings of 20 percent for left and right knee instability The Veteran is currently rated at 10 percent for each knee based on limitation of flexion pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. He filed claims increased ratings on July 15, 2015. As explained in the remand portion of this decision, the Board finds the relevant VA examinations for the Veteran’s knees inadequate, requiring remand of the increased rating claims. Nevertheless, the Board finds that the evidence supports a separate disability rating for left and right knee instability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5257 covers “other impairment of the knee.” During the pendency of the appeal, Diagnostic Code 5257 was amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Where, as here, a diagnostic code is amended while a claim is pending, VA is required to consider both versions of the code and apply the version most favorable to the Veteran. The prior version of Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. The amended version of the Diagnostic Code rates knee instability based on the existence of ligament tears. As there is no evidence of a ligament tear in the record, the Board finds the prior version of the Diagnostic Code more favorable to the Veteran and will rate instability accordingly. Here, the competent lay evidence establishes that the Veteran experiences left and right knee instability. The Veteran testified at the August 2020 hearing that his knees “give out” and “lock up.” The Veteran noted in his NOD and an October 2015 lay statement that his knees would buckle and “give out,” and that he used braces, but they did not help with stability. The Veteran reported to the September 2015 VA examiner that he used braces intermittently. The Veteran reported to the August 2017 VA examiner that he had cracking and popping in his knees while walking and that he wore bilateral braces. Although the September 2015 and August 2017 VA examiners found no knee instability, medical evidence is not inherently more probative than lay evidence in considering entitlement to a disability rating for knee instability pursuant to Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 352 (2018). Here, the Board finds the lay evidence competent and credible, and sufficient to establish the existence of moderate instability of the left and right knees. Based on the foregoing, the Board finds the Veteran is entitled to separate 20 percent ratings for his left and right knee disabilities. The Board also finds that a rating higher than 20 percent is not warranted as the instability described by the Veteran is most appropriately classified as moderate as opposed to severe. Separate disability ratings of 20 percent for left lower extremity radiculopathy and 10 percent for right lower extremity radiculopathy The Veteran filed a claim for increased rating for his low back disability on February 19, 2017. As explained in the remand portion of this decision, the claim for an increased rating for the Veteran’s low back disability is remanded to obtain an adequate VA examination. Nevertheless, the Board finds that the Veteran is entitled to separate disability ratings for bilateral lower extremity radiculopathy. Pursuant to Note 1 in the General Spinal Formula, associated neurologic abnormalities are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71(a), Note 1. Here the Veteran’s bilateral lower extremities have shown signs and symptoms of radiculopathy relating to his low back disability, warranting separate ratings. The diagnostic code most approximating the Veteran’s condition is 38 C.F.R. § 4.124a, Diagnostic Code 8520, paralysis of the sciatic nerve. Under this code, a 10 percent evaluation is assigned for mild incomplete paralysis and a 20 percent evaluation is assigned for moderate incomplete paralysis. The record in this case reflects that the Veteran’s left lower extremity radiculopathy symptoms best approximate moderate incomplete paralysis, warranting a 20 percent rating pursuant to DC 8520. The right lower extremity radiculopathy symptoms best approximate mild incomplete paralysis, warranting a 10 percent rating. The Veteran testified at the hearing that his sciatic nerve was affecting his legs, including major numbness in his left leg, occasional foot drop and inability to move the left leg. The Veteran related that he had radiculopathy symptoms in both legs but in the left more severe than the right. The March 2017 VA examiner reported no radiculopathy symptoms. An April 2017 VA treatment note describes the Veteran experienced flare ups of severe pain, radiating left greater than right. Private treatment records from July 2019 and March 2020 note that the Veteran had radiculopathy. The Veteran described having numbness in his left thigh as part of his VA Form 9. The December 2019 VA examiner noted that the Veteran had radiculopathy related to the sciatic nerve in the left and right legs. Although the VA examiner marked the right leg as having moderate radiculopathy, the Veteran clarified at the hearing that his left leg was more affected than his right leg. Based on the foregoing, the Veteran was experiencing neurological symptoms in his lower extremities as early as April 2017. Based on the competent medical evidence, and the Veteran’s lay statements and testimony, the Board finds that an award of 20 percent for left lower extremity radiculopathy and 10 percent for right lower extremity radiculopathy is warranted from April 26, 2017. The record reflects that the Veteran consistently described the radiculopathy as worse on the left side. As noted in the remand portion of this decision, the rating for bilateral lower extremity radiculopathy requires an updated VA examination based on the Veteran’s testimony suggesting worsening of the condition. Temporary total evaluation The Veteran filed claims for a temporary total rating on February 19, 2017 and June 18, 2017. In an October 2017 lay statement the Veteran clarified that he was seeking a temporary total evaluation in connection with herniated discs in his back. Under 38 C.F.R. § 4.30(a), temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. The United States Court of Appeals for Veterans Claims (Court) has defined convalescence as the stage of recovery following an attack of disease, a surgical operation, or an injury. See Felden v. West, 11 Vet. App. 427, 430 (1998). Also, recovery is defined as the act of regaining or returning toward a normal or healthy state. Id. While the Veteran’s low back disability is service-connected, VA and private treatment records do not show that he underwent any surgery until July 2019, when a microdiscectomy was performed. The Veteran testified that he did not spend any time in the hospital following the surgery and that he was out of work for seven to eight months, during which time he had follow-up treatment with the VA and private treatment providers. The Veteran also testified that the decision to not work was based on his own belief that he would not be able to sit at a desk for long periods of time. Private treatment records for the surgery reflect that the Veteran was seen 11 days after the procedure and, at that time, confirmed continued improvement in his back and leg pain, with some numbness continuing. The Veteran was reported to have returned to work and was advised that he could return to low impact exercises while avoiding heavy lifting. The evidence of record does not reflect that the Veteran required at least one-month convalescence following his July 2019 surgery; had severe postoperative residuals or had casting, without surgery, of one of his major joints. The Board further notes the Veteran was seen 11 days after the surgery and was described as “improved” with the ability to perform light exercise. Although the Board is sympathetic to the Veteran’s claim, the preponderance of the evidence is against the claim for a temporary total evaluation for convalescence associated with the July 2019 low back surgery. Nor is there evidence in the record of any other surgical procedures performed on the low back. Accordingly, the claim for a temporary total evaluation must be denied. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Increased Ratings for Bilateral Knee Disabilities As noted, VA received the Veteran’s claim for increased ratings for his bilateral knee disabilities on July 15, 2015. The Veteran was afforded VA examinations for his knees in September 2015 and August 2017. The Veteran reported to the September 2015 VA examiner that he experienced daily flareups caused by stairs and prolonged walking and reported to the August 2017 examiner that he experienced flareups of sharp pain and swelling. Both examiners noted that they were unable to unable to state whether pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability during flareups without resort to speculation because the Veteran was not being examined during a flareup. As the examiners did not attempt to estimate the Veteran’s range of motion during flareups, the examinations are inadequate pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Moreover, the Veteran testified at the hearing that his knee disabilities have worsened since his most recent examination. Based on the foregoing, remand is required for a VA examination addressing the current severity of the Veteran’s bilateral knee disabilities as well as to provide a retrospective assessment of the severity of the Veteran’s knee disabilities during flareups. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate.) Increased Ratings for Low Back Disability and Radiculopathy The Veteran was afforded VA examinations for his low back disability in December 2019 and March 2017. The Veteran reported to the March 2017 VA examiner that he experienced flareups with muscle tightening and sharp pain. The examiner concluded that she was unable to state whether pain, weakness, fatigability or incoordination significantly limited his functional ability during a flareup without resort to speculation because the Veteran was not examined during a flareup. The December 2019 VA examiner reported that the Veteran did not have flareups. The Veteran testified at the Board hearing that he has flareups of his back condition that further restricts his range of motion. As noted, VA examiners are required to estimate the additional degree of limitation of motion caused by flareups. See Sharp, supra. In light of the competent and credible evidence that the Veteran experiences flareups, and the lack of an adequate VA examination estimating the additional loss of range of motion during flareups, remand is warranted for a VA examination, to include a retrospective opinion on the Veteran’s loss of range of motion during flareups. Additionally, the Veteran’s testimony at the Board hearing suggests that his radiculopathy has worsened since the most recent VA examination for his back disability. Accordingly, on remand, the VA examiner should also address the current nature and severity of the Veteran’s now service-connected bilateral lower extremity radiculopathy. Entitlement to service connection for bilateral ankle and hip conditions is remanded. The Veteran has submitted evidence that his bilateral ankle and hip conditions are related to his service-connected feet disabilities. Specifically, the Veteran testified that physicians have told him that the conditions are related to his feet disabilities. The VA examinations conducted in June 2010 and September 2015 for the Veteran’s bilateral ankle and hip conditions are inadequate because they were based on the erroneous conclusions that the Veteran did not have ankle or hip disabilities. Accordingly, remand is warranted for VA examinations to determine the nature and etiology of the Veteran’s bilateral ankle and bilateral hip disabilities, including whether they are secondary to his service-connected feet disabilities. Entitlement to a disability rating in excess of 10 percent for GERD is remanded. The Veteran testified at the August 2020 Board hearing that his GERD has worsened since his most recent VA examination in December 2019. When a claimant asserts that the severity of a disability has increased since the most recent VA examination, an additional examination may be required. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, remand is warranted to determine the current nature and severity of the Veteran’s GERD. TDIU The issue of entitlement to a TDIU is inextricably intertwined with the issues of increased disability for the bilateral knee, low back and GERD disabilities, as well as the service connection claims for the Veteran’s bilateral ankle and bilateral hip conditions. Accordingly, the claim for a TDIU must also be remanded pending the outcome of the intertwined claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Following the development in item 1, schedule the Veteran for a VA examination with an appropriate clinician to evaluate the Veteran’s bilateral knee disabilities. The examiner must be provided with and review the entire claims file, to include a copy of this remand. All appropriate tests and studies should be conducted. The examiner should provide opinions on the current nature and severity of the Veteran’s bilateral knee disabilities and a retrospective opinion (based on file review). (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flareups of his service-connected knee disability, and how he characterizes additional functional loss during flareups. Please note that the Veteran testified that he experiences flareups. (b.) For flareups, identify the frequency, duration, precipitating factors and alleviating factors. Please provide an opinion regarding the functional effects of flareups of the Veteran’s service-connected bilateral knee conditions, including whether it is at least as likely as not (50 percent probability or greater that during a flareup range of motion was additionally limited to 30 degrees or less (the measurement required for the next higher rating) for the period from July 15, 2015. Please explain why or why not. Please estimate functional loss that occurred during flareups, using information procured from relevant sources of record in addition to examination reports, including lay statements from the Veteran. (c.) The examiner should also offer an opinion on the functional impairment caused by the Veteran’s service-connected bilateral knee disabilities, relative to the Veteran’s ability to obtain and maintain substantially gainful employment during the appeal period. The examiner must provide a rationale for the opinion, citing to specific evidence in the record. 3. Following the development in item 1, schedule the Veteran for a VA examination with an appropriate clinician to evaluate the Veteran’s low back disability, including his service-connected bilateral lower extremity radiculopathy. The examiner must be provided with and review the entire claims file, to include a copy of this remand. All appropriate tests and studies should be conducted. The examiner should provide opinions on the current nature and severity of the Veteran’s low back disability and a retrospective opinion (based on file review). (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flareups of his service-connected low back disability, and how he characterizes additional functional loss during flareups. Please note that the Veteran testified that he experiences flareups. (b.) For flareups, identify the frequency, duration, precipitating factors and alleviating factors. Based upon the information elicited, state whether it is at least as likely as not (50 percent probability or more) that during a flareup range of motion is additionally limited to 30 degrees or less for the time period from December 26, 2019 and whether it is at least as likely as not that during a flareup range of motion is additionally limited to forward flexion greater than 30 degrees but not greater than 60 degrees, or a combined range of motion not greater than 120 degrees for the time period from February 19, 2017 to December 26, 2019 (the measurements required for the next higher ratings during those time periods). Please explain why or why not. Please estimate functional loss that occurred during flareups, using information procured from relevant sources of record in addition to examination reports, including lay statements from the Veteran. (c.) The examiner should also offer an opinion on the functional impairment caused by the Veteran’s service-connected low back disability and bilateral lower extremity radiculopathy, relative to the Veteran’s ability to obtain and maintain substantially gainful employment during the appeal period. The examiner must provide a rationale for the opinion, citing to specific evidence in the record. 4. Following the development in item 1, schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral ankle and bilateral hip disabilities. The claims file and this REMAND must be reviewed by the examiner in conjunction with the examination. Any test or studies deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner must opine to: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral ankle or bilateral hip conditions are related to his active duty service. Please explain why or why not. (b.) If not caused by service, whether it is at least as likely as not that the Veteran’s bilateral ankle or bilateral hip conditions were caused or aggravated by his service-connected feet disabilities. (c.) If the examiner finds that the Veteran’s bilateral ankle or bilateral hip conditions have been aggravated by his service-connected feet disabilities, the examiner should attempt to quantify the degree of aggravation beyond the baseline that is attributable to the service-connected feet disabilities. In proffering his opinion, the examiner must determine whether the Veteran’s service-connected feet disabilities caused any incremental increase, even transient, in his bilateral ankle or bilateral hip conditions, regardless of permanence. In forming the opinions, the examiner must address the Veteran’s report that he has been told that his bilateral ankle and bilateral hip conditions are related to his feet disabilities. 5. After the completion of the development in item 1, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected GERD disability. The claims file and this REMAND must be reviewed by the examiner in conjunction with the examination. Any test or studies deemed necessary should be conducted and the results reported in detail. The examiner should provide a full description of the GERD disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should also offer an opinion on the functional impairment caused by the Veteran’s service-connected GERD, relative to the Veteran’s ability to obtain and maintain substantially gainful employment during the appeal period. The examiner must provide a rationale for the opinion, citing to specific evidence in the record A complete rationale for the examiners’ opinions should be provided, citing to specific evidence of record and any relevant medical literature, as necessary. If the examiners cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiners must provide the reasons why an opinion would require speculation. The examiners must indicate whether there was any further need for information or testing necessary to provide an opinion. Additionally, the examiners must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the examiner. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.