Citation Nr: 21014464 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-28 354A DATE: March 12, 2021 ORDER Entitlement to an increased rating of 40 percent, but no higher, for lumbar spine degenerative disc disease with spondylosis (DDD) is granted. Entitlement to a separate evaluation of 10 percent, but no higher, for left lower extremity radiculopathy prior to January 10, 2013 is granted. Entitlement to a separate noncompensable evaluation, but no higher, for right lower extremity radiculopathy prior to January 10, 2013 is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 22, 2013 is granted. REMANDED Entitlement to an increased rating in excess of 10 percent for right knee status post anterior cruciate ligament reconstruction (right knee disability) is remanded. Entitlement to an increased rating in excess of 10 percent for residuals of left knee strain (left knee disability) is remanded. FINDINGS OF FACT 1. After resolving reasonable doubt in his favor, the Veteran’s lumbar spine DDD manifests in functional loss equivalent to flexion limited to at least 30 degrees, especially during frequent flare-ups. 2. The evidence is at least in equipoise that the Veteran had bilateral lower extremity radiculopathy as a neurological abnormality associated with his lumbar spine DDD prior to January 10, 2013. 3. The Veteran’s left lower extremity radiculopathy was mild prior to January 10, 2013. 4. The Veteran had no symptoms associated with his right lower extremity radiculopathy prior to January 10, 2013. 5. After resolving reasonable doubt in the Veteran’s favor, his service-connected disabilities prevented him from securing and maintaining substantially gainful occupation prior to July 22, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 40 percent, but no higher, for lumbar spine DDD have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5243 (2020). 2. The criteria for entitlement to a separate evaluation of 10 percent, but no higher, for left lower extremity radiculopathy prior to January 10, 2013 have been met. 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5243, 4.124a, Code 8520 (2020). 3. The criteria for entitlement to a separate noncompensable evaluation, but no higher, for right lower extremity radiculopathy prior to January 10, 2013 have been met. 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5243, 4.124a, Code 8520 (2020). 4. The criteria for entitlement to TDIU prior to July 22, 2013 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2000 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA). This case was remanded in July 2018 and March 2020 for further development. In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an increased rating in excess of 20 percent for lumbar spine DDD. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (“functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor…that actually limited motion” (emphasis removed)). Nonetheless, even when the background factors listed in §§ 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant’s disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. However, pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011). The Veteran is currently rated pursuant to Code 5243 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosia. A 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. “Unfavorable ankylosis” is defined, in pertinent part, as “a condition in which...the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” See id., Note (5). As an initial matter, the Board notes that there were significant changes to the rating criteria for musculoskeletal disabilities that became effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. However, substantively, the rating criteria as applicable to the spine did not change and any other changes made do not have an impact on rating the Veteran’s lumbar spine DDD. Thus, the Board will not further discuss them. The Board notes that the VA back examinations of record remain inadequate because they do not comply with Correia v. McDonald, 28 Vet. App. 158 (2016). However, remand is no longer necessary because the Veteran must show unfavorable ankylosis to be entitled to an increased rating in excess of 40 percent. The considerations in Correia do not apply to the symptoms that must be shown for unfavorable ankylosis, such as restricted opening of the mouth and a limited line of vision, and thus remand for a new examination would not reasonably substantiate the Veteran’s claim. The record does not reflect, nor has the Veteran stated, that he has any of the requisite symptoms for a finding of unfavorable ankylosis. Accordingly, the Board finds that remand for a new VA examination is unnecessary. During a December 2010 VA back examination, the Veteran reported that he had intermittent low back pain, but that he would have spontaneous and sudden severe muscle spasms. The flare-ups could be a ten out of ten on the pain scale and would get worse with prolonged sitting and walking. In April 2012, the Veteran reported that his back would spontaneously spasm and he could not perform simple tasks like getting dressed. He would not be able to move. See April 2012 statement. The next VA back examination was not until May 2017. The Veteran reported that his pain had become worse. He reported frequent flare-ups with more severe pain and that he had difficulty with lifting items from the ground, bending, carrying items, squatting, kneeling, prolonged standing, and prolonged sitting in one position. During an April 2018 Board hearing, the Veteran testified that he had episodes where he could not move. He would have back spasms that lasted two to three months. One time during a flare-up, he had to ask his daughter to open a door because he could not move. He was always in pain, including while driving, walking and during other normal daily routines. During a December 2018 VA back examination, the Veteran reported daily low back pain that had gotten worse since the May 2017 VA examination. The pain would become worse with prolonged sitting in one position, especially with driving long distances, as well as prolonged walking, sports activities, heavy lifting, and repetitive bending. He stated he had difficulty with bending and twisting movements such as getting into and out of a car. He reported difficulty with simple tasks such as cleaning his home because of the bending and twisting motions required and with getting dressed, especially with his lower body. During a March 2020 VA examination, the Veteran reported daily flare-ups that lasted a few hours and were precipitated by activity. Range of motion measurements for flexion during flare-ups was limited to 50 degrees. Although the Veteran is not noted to have flexion limited to 30 degrees, after resolving reasonable doubt in the Veteran’s favor, the Board finds that he has functional loss equivalent to at least 30 degrees of limitation of flexion during his periods of flare-ups. The Veteran has consistently reported difficulties with everyday tasks, such as driving and getting dressed. He repeatedly reported an inability to move his back when it was spasming. Although the frequency and duration of his flare-ups appears to change during the appeal period, in light of the inadequacies of the examinations of record, the Board resolves reasonable doubt and finds that the periods of flare-ups persistent enough to manifest in functional loss equivalent to limitation to at least 30 degrees of flexion. As a result, a 40 percent rating is warranted. To assign a disability rating in excess of 40 percent, the evidence would need to show unfavorable ankylosis of the thoracolumbar spine or the entire spine. There is no evidence in the record that the Veteran suffers from the symptoms associated with unfavorable ankylosis, such as breathing limited to diaphragmatic respiration or limited line of vision. Accordingly, an increased rating in excess of 40 percent must be denied. The Board notes that the Veteran has been diagnosed with intervertebral disc syndrome (IVDS). See, e.g., May 2017 VA back examination. IVDS can be rated pursuant to a separate formula, the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a, Code 5243. In order to obtain an increased rating in excess of 40 percent, the Veteran would need to demonstrate incapacitating episodes having a total duration of at least six weeks during the past 12 months. For purposes of this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Code 5243, IVDS Formula, Note (1). During his April 2018 Board hearing, the Veteran testified about episodes where he could not get out of bed. He reported that his doctor would give him medication and medically ordered bed rest. However, there is no evidence, either in VA treatment records or VA examinations, that the Veteran had prescribed bed rest with a total duration of at least six weeks at any time during the appeal period. As a result, he is not entitled to a higher rating pursuant to the IVDS Formula, and he is correctly rated by the General Formula. Finally, the Board notes that a physician opined that the Veteran should be granted an extraschedular rating. See December 2011 Social Security Administration (SSA) records. A determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. If the Board determines that (1) the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); 38 C.F.R. § 3.321. After review of the record, there is no probative evidence that the Veteran’s lumbar spine DDD manifests in symptoms not contemplated by the schedular criteria or causes marked interference with employment or frequent periods of hospitalization. The December 2011 private physician’s opinion that extraschedular consideration is warranted is given no probative weight because there’s no rationale for the opinion. The Board acknowledges that the Veteran’s lumbar spine DDD has some impact on his ability to work, see, e.g., May 2017 VA back examination, but some interference with employment is already contemplated by the schedular rating that is assigned for the Veteran’s disability. The impact reflected in the record is not tantamount to concluding there has been “marked” interference with his employment above and beyond that contemplated by the schedular rating assigned. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired.). The Veteran’s symptoms primarily manifest in pain that prevent his ability to move his back, which is contemplated by the schedular criteria. There is no probative evidence of any other exceptional or unusual circumstances related to the Veteran’s lumbar spine DDD, such as frequent hospitalizations, to suggest he is not adequately compensated for his disability by the schedular criteria. The record reflects his treatment has been mostly, if not entirely, on an outpatient basis, including his trips to the emergency room. See, e.g., December 2010 VA back examination. Because the Veteran’s lumbar spine DDD manifests in symptoms contemplated by the schedular criteria and does not exhibit any related factors such as marked interference with employment or frequent periods of hospitalization, extraschedular referral is not appropriate. Thus, the Veteran is entitled to an increased rating of 40 percent, but no higher, for his lumbar spine DDD. 2. Entitlement to separate evaluations for bilateral lower extremity radiculopathy prior to January 10, 2013. Pursuant to Note (1) of the General Formula, the Board must consider whether the Veteran is entitled to a separate evaluation for any neurological abnormalities associated with the Veteran’s back disability, which include radiculopathy. See 38 C.F.R. § 4.71a. The AOJ granted separate evaluations for bilateral lower extremity radiculopathy, but only effective from January 10, 2013, see January 2014 rating decision, which is not the entire period on appeal. Thus, pursuant to Note (1) of the General Formula, the Board must consider whether the Veteran had radiculopathy early in the appeal period for the Veteran’s claim for an increased rating for his lumbar spine DDD. During a December 2010 VA examination, the Veteran denied radiation along the lower extremities. In November 2011, the Veteran reported radiating pain occasionally down his left buttocks. The physician diagnosed lumbar back pain with sciatica. See November 2011 VA treatment records. In August 2013, a VA treating physician noted that a December 2011 MRI reflected an extraforaminal effect on the left L3 and L4 nerve roots and right S1 nerve foot effect. After considering the MRI and the Veteran’s lay statements, the physician opined that the Veteran had chronic lower back pain with bilateral lower extremity radicular symptoms since the Veteran’s service. See August 2013 VA treatment records. During a November 2013 VA peripheral nerves examination, the examiner diagnosed lumbar radiculopathy and noted 2004 as the date of diagnosis. The examiner opined that the Veteran had no symptoms of pain, paresthesias or dysesthesias, or numbness in the Veteran’s right lower extremity and had mild symptoms of intermittent pain (usually dull), paresthesias or dysesthesias, and numbness in the left lower extremity. After considering the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran has bilateral lower extremity radiculopathy prior to January 10, 2013. Notably, the November 2013 VA examiner and August 2013 VA physician opined that the Veteran’s radiculopathy began after the Veteran’s back injury in service. While there are instances where the Veteran did not report radiculopathy symptoms, such as during the December 2010 VA examination, the opinions by the November 2013 VA examiner and August 2013 VA treating physician outweigh the Veteran’s reports (or lack thereof) noted in the December 2010 examination. As a result, separate evaluations for bilateral lower extremity radiculopathy prior to January 10, 2013 are warranted. The Veteran’s bilateral lower extremity radiculopathy is rated pursuant to Code 8520, for paralysis of the sciatic nerve. Pursuant to that Code, at 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; and a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. A maximum rating of 80 percent is warranted for complete paralysis, with the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. There is a notable absence of contemporaneous evidence prior to January 10, 2013 that discusses the severity of the Veteran’s bilateral lower extremity radiculopathy. The most probative evidence reflects that he had almost no symptoms in his right lower extremity and only occasional mild symptoms in his left lower extremity. See November 2011 VA treatment records. This severity is consistent with the November 2013 VA examination—outside of the appeal period but in close temporal proximity to it—reflecting no symptoms in the right lower extremity but mild symptoms in the left lower extremity. As a result, the preponderance of the evidence reflects that the Veteran’s left lower extremity manifested in mild symptoms prior to January 10, 2013 and his right lower extremity did not manifest in symptoms prior to January 10, 2013. Thus, an evaluation of 10 percent, but no higher, for the Veteran’s left lower extremity radiculopathy is warranted, and a separate noncompensable evaluation, but no higher, is warranted for his right lower extremity radiculopathy. The Board has considered whether the Veteran could obtain a higher evaluation pursuant to a different Code. There are no other applicable Codes related to nerves in the lower extremities that provide a higher evaluation for the severity of the Veteran’s symptoms. Thus, the Veteran is appropriately rated pursuant to Code 8520. 3. Entitlement to TDIU prior to July 22, 2013. TDIU may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular percentage standards. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board previously granted entitlement to TDIU from July 22, 2013. The Veteran meets the schedular criteria for entitlement to TDIU from January 10, 2013 but does not meet the schedular criteria prior to that date. He is service-connected for his back, knees, and bilateral lower extremity radiculopathy during the entire period of appeal, and then his psychological disorder, effective January 10, 2013. In March 2020, the Board remanded this matter to the Director, Compensation Service, for extraschedular consideration. In October 2020, the Director opined that the Veteran was not entitled to extraschedular consideration. See October 2020 VA advisory opinion. The Veteran worked full-time as a cable technician from February 2013 to July 2014. See April 2014 VA Form 21-8940. However, he actually stopped working as a technician on July 21, 2013, and his employer reported he did not return to work due to health reasons. See November 2014 VA Form 21-4192. He later reported that he went on short-term disability due to his back spasms and he never returned to work. Prior to his job as a cable technician, the Veteran worked part-time as a substitute teacher. Although it is unclear whether the Veteran worked as a substitute teacher until January 2013 or sometime in 2015, it appears that he worked only a few days out of the month. See March 2015 VA psychological examination. He reported that he worked out of necessity to pay bills, but he frequently had trouble maintaining the position due to his back and knees. He could not make it to work sometimes because his back would spasm and he could not perform simple tasks, such as getting dressed. See April 2012 statement. In February 2013 VA treatment records, the Veteran reported that his knee pain was constant, and he experienced anhedonia, poor energy, poor motivation and poor concentration. He was sleeping two to three hours a night. A few days earlier, he called the Veteran’s crisis line and reported suicidal thoughts that would come and go. A private physician opined that the Veteran’s service-connected back and knee disabilities rendered the Veteran unemployable. See December 2011 SSA records. Although the physician did not provide a rationale for the opinion, the Board will assign some probative weight to the opinion because the physician reviewed the claim file and provided a detailed summary of the Veteran’s disabilities. Although the Veteran worked part-time prior to February 2013, such employment is not considered substantially gainful occupation because it did not permit the Veteran to earn a living wage. Indeed, it appears that the Veteran did not even work 20 hours a week and earned income less than the poverty threshold for one person. See April 2012 VA Form 21-8940; U.S. Department of Commerce, Bureau of the Census, Poverty Thresholds, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed Mar. 5, 2020). Additionally, while the Veteran worked full-time as a cable technician, he was unable to maintain that job for more than five months before his back interfered too greatly with his work. As a result, the Board does not find that he was able to secure and maintain substantially gainful occupation while working full-time in 2013. As a result, the Board finds that the Veteran’s employment prior to July 22, 2013 is not considered substantially gainful occupation. After resolving reasonable doubt and after considering the Veteran’s report of back spasms preventing him from getting dressed, his report of constant knee pain, and his psychological symptoms after January 10, 2013, the Board finds that he was unable to secure and maintain substantially gainful occupation prior to July 22, 2013, and TDIU is warranted on an extraschedular and schedular basis. REASONS FOR REMAND Entitlement to increased ratings in excess of 10 percent for a right knee disability and left knee disability. These issues were remanded by the Board in April 2018 and March 2020 to obtain examinations compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). While the Veteran underwent a new examination in April 2020, range of motion measurements were not provided in active and passive motion in both weight-bearing and non-weight-bearing circumstances. Thus, the examinations are inadequate and remand for new examinations is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from April 2020 to the present. 2. After the above development is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected bilateral knee disabilities. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.