Citation Nr: 21021212 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-00 455 DATE: April 12, 2021 REMANDED Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to service connection for a respiratory disability (other than allergic rhinitis) including asthma is remanded. Entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The Veteran had active duty service from February 1990 to May 1993 and from December 1993 to June 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing in January 2020. In July 2020, the Board notified the Veteran that, unfortunately, a transcript of his testimony could not be completed due to audio malfunctions in the Digital Audio Recording System (DARS). In September 2020, the Veteran indicated that he did not wish to appear for another hearing and that he wanted his case decided on the evidence of record; he submitted an additional written statement and argument. 1. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity 2. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity The Veteran underwent a VA examination for his back disability in July 2016, which included muscle strength and sensation testing of the bilateral lower extremities. The examiner indicated that the sciatic nerve was involved, but also checked the box indicating that other nerves were involved. When asked to specify nerve and side affected, the examiner responded only with the side affected, but not the nerve. Notably, the Veteran also had a physical examination and electrodiagnostic testing (EMG) completed in July 2016. The results showed that the Veteran had absent reflexes at the knees, loss of sensation over the right lateral surface of the right leg between the knee and the ankle, unobtainable nerve conduction responses of the right superficial peroneal nerve, and fibrillation potentials and positive short waves emanated from the gastrocnemius muscles in the lower leg. The Veteran’s radiculopathy is presently rated under Diagnostic Code (DC) 8520, for incomplete paralysis of the sciatic nerve. However, the medical evidence suggests that DC 8522 might be applicable for paralysis of the superficial peroneal nerve. The July 2016 VA examiner reviewed the EMG, but the examination report is inadequate for determining whether a higher rating is in order or whether a rating under a different diagnostic code is warranted. Therefore, a remand is needed for clarification. Additionally, as it has been over four years since the Veteran’s last VA examination, the Board finds that the Veteran should be afforded a peripheral nerve examination on remand. 3. Entitlement to a rating in excess of 20 percent for lumbar DDD The Veteran last underwent a VA examination for his back disability in July 2016. The Board concludes that the July 2016 VA examination of the Veteran’s back is inadequate for rating purposes. In order to be adequate, VA examiners must also provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The July 2016 VA examination report does not include estimates of functional ability with flare-ups or repetitive use over time, and the examiner noted that it is not possible to estimate, without resorting to mere speculation, loss of range of motion over time or during a flare. Notably, the Veteran reported that standing longer than 15 minutes, sitting longer than 30-45 minutes, and walking longer than 30-60 minutes caused his symptoms to flare-up. Under Sharp, before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation, the examiner must “[E]licit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares[.]” Sharp, 29 Vet. App. at 35. The Board notes that the examiner did not consider the relevant information obtained from the Veteran prior to the examination concluding that an estimation would be speculative. Additionally, the examiner should have elicited additional information, such as how far the Veteran can flex and extend his spine during a flare-up, or whether the flare-up was akin to functional ankylosis. In other words, the examiner did not elicit sufficient information regarding flares in order to estimate the average limitation of range of motion or which rating criteria the Veteran’s disability most closely approximates. See 38 C.F.R. §§ 4.1,4.3, 4.7. Thus, to comply with Sharp, a remand is necessary in order for the examiner to elicit additional information regarding flares and to estimate the Veteran’s functional loss based on all the evidence of record, including, but not limited to, the Veteran’s own statements. Additionally, the Veteran reported to the VA examiner that he received chiropractic treatment and acupuncture. These records should be requested on remand. 4. Entitlement to service connection for a respiratory disability other than allergic rhinitis, including asthma is remanded. The Board acknowledges that the Veteran submitted private opinions in support of his claim in July 2016 and January 2020. Unfortunately, the opinions are inadequate to grant the Veteran’s claim. In July 2016, the Veteran was afforded a VA examination for respiratory conditions, and the VA examiner opined that the Veteran did not have a diagnosis of asthma. In August 2016, the VA examiner reviewed the private opinion submitted in July 2016 and explained in more detail why the Veteran did not have a diagnosis of asthma. After careful review, neither private opinion indicates that the Veteran has a clinical diagnosis of asthma. Dr. G. J.’s opinion indicates that the Veteran is a patient, is on a bronchodilator for his “condition,” allergic rhinitis is a risk factor for asthma and can worsen it, and the Veteran’s pulmonary functioning test reveals moderately severe restriction. Dr. F. H.’s opinion is substantially similar. Neither opinion identifies the Veteran’s currently diagnosed “condition”. A review of the available private records indicates that a diagnosis of asthma does not appear in them. The Board notes that the private records available are limited, and the AOJ did not take steps to request the Veteran’s complete records from The Allergy Clinic. Therefore, an attempt to obtain the Veteran’s private records must be made on remand. Additionally, given the nature of the Veteran’s claim and the available evidence, the Board is recharacterizing the Veteran’s claim. The Board recognizes that the Veteran is service connected for allergic rhinitis, and the PFT showed moderately severe restriction, but the VA examiner noted that on PFTs, an obstructive pattern must be shown to diagnose asthma, not merely a restrictive pattern. Therefore, the Board is expanding the Veteran’s claim to include service connection for a restrictive respiratory disability other than allergic rhinitis. On remand, the AOJ must obtain an opinion regarding whether the Veteran’s symptoms are attributable to his service-connected allergic rhinitis, or a separate and distinct disability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete releases authorizing VA to obtain his records from any private provider who has treated him for a back disability, radiculopathy, or a respiratory disability, including chiropractors, acupuncturists, and allergists, such as Dr. Janss, The Allergy Clinic, and Dr. Herman. If releases are completed, make reasonable efforts to obtain any identified private treatment records. If any requested records are not obtained, inform the Veteran. 2. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected radiculopathy of the bilateral lower extremities. If an in-person examination cannot be conducted, an examination by other means should be conducted. 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 symptoms. To the extent possible, the examiner should identify any occupational impairment due to the Veteran’s service-connected radiculopathy. The examiner should provide a complete rationale for any expressed opinion. (a) The examiner should review and comment on the Veteran’s July 2016 EMG, and must opine whether the Veteran’s radiculopathy affects (1) the external popliteal nerve (common peroneal); (2) the musculocutaneous nerve (superficial peroneal); (3) anterior tibial nerve (deep peroneal); or (4) any other nerve of the lower extremities. 3. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected DDD of the lumbar spine, or by other means if an in-person examination is not feasible. 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. Specifically, the examiner must test the Veteran’s active motion, passive motion, ranges of motion of the opposing joint, and pain with weight-bearing and without weight-bearing. 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 during the appeal period beginning in 2015. If this information cannot be obtained or determined, the examiner should give a detailed explanation why. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected spine disability and discuss the effect of the Veteran’s service-connected disability on any occupational functioning and activities of daily living. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his respiratory disability other than allergic rhinitis. If an in-person examination is not feasible, the Veteran must be afforded an examination by other means. All necessary tests should be conducted. The entire claims file and a copy of this remand should be made available to the examiner for review. The examiner should respond to the inquiry below. (a.) The examiner must clarify the Veteran’s diagnoses, and specifically indicate if the moderately severe restriction shown on a PFT, with significant improvement after use of Xopenex, is attributable to his allergic rhinitis or a distinct and separate respiratory disability. (b.) The examiner must address and discuss: the diagnosis of asthma appearing in the Veteran’s medical history; the Veteran’s report that he complained of mucus and asthma symptoms in service, which did not improve until he used an inhaler around 2015; and the Veteran’s representative’s argument that albuterol, formoterol, and budesonide (corticosteroid), which the Veteran has been prescribed during the appeal period, are used to treat asthma and inflammation in the lungs that would cause an asthma attack. (c.) The examiner must opine as to whether any restrictive respiratory disability other than allergic rhinitis at least as likely as not (50 percent likelihood or greater) is proximately due to, the result of, or aggravated beyond its natural progress by the Veteran’s allergic rhinitis. (d.) If the Veteran is diagnosed with asthma, or the Veteran’s private records indicate such a diagnosis, the examiner must address the articles submitted in support of the claim in April 2016, and the opinions of Drs. Janss and Herman. (Continued on the next page)   A fully reasoned explanation for all opinions expressed must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner 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 particular examiner.. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.