Citation Nr: 21022171 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 10-15 282 DATE: April 14, 2021 ORDER For the period on appeal, a rating of 40 percent, but no higher, for a lumbar disability is granted. An initial rating in excess of 20 percent for left lower extremity radiculopathy (sciatic nerve) is denied. An initial rating in excess of 20 percent for right lower extremity radiculopathy (sciatic nerve) is denied. REMANDED Entitlement to a rating in excess of 10 percent for a left knee disability prior to October 27, 2015, and between January 1, 2017 and October 2, 2017 is remanded. Entitlement to a compensable rating for a left knee disability (limited extension) prior to October 27, 2015 and from January 1, 2016 and October 2, 2017 is remanded. Entitlement to a rating in excess of 30 percent for a total left knee replacement from December 1, 2018 onward is remanded. Entitlement to a rating in excess of 10 percent for a left hip disability (degenerative joint disease) prior to December 17, 2009, and from March 1, 2010 and March 24, 2010 is remanded. Entitlement to a rating in excess of 30 percent for a total left hip replacement from May 1, 2011 onward and 50 percent from December 26, 2018 onward is remanded. FINDINGS OF FACT 1. For the period on appeal, when resolving reasonable doubt in favor of the Veteran, the competent and probative evidence shows the Veteran’s lumbar forward flexion was limited to 30 degrees or less. 2. The competent and probative evidence shows moderate incomplete paralysis of the left lower extremity (sciatic nerve). 3. The competent and probative evidence shows moderate incomplete paralysis of the right lower extremity (sciatic nerve). CONCLUSIONS OF LAW 1. During the period on appeal, the criteria for a rating of 40 percent, but no higher, for a lumbar disability are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for an initial rating in excess of 20 percent for radiculopathy of the left lower extremity (sciatic nerve) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, DC 8620. 3. The criteria for an initial rating in excess of 20 percent for radiculopathy of the right lower extremity (sciatic nerve) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1980 to August 1984. These matters are before the Board of Veterans’ Appeals (Board) on appeal from various rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded by the Board in July 2019 for additional development. They have now returned to the Board for appellate consideration. In a March 2019 rating decision (with notification on August 7, 2019), the RO granted entitlement to service connection for a pelvic disability. TDIU was also granted effective May 1, 2011. The Veteran asserted TDIU from May 2010 onward. 5/30/2014 VA 21-8940. He received a 100 percent rating for his left hip replacement from March 24, 2010 until May 1, 2011. As a 100 percent rating was granted for the Veteran’s service-connected left hip disability, effective March 24, 2010 until May 1, 2011, the period on appeal beginning May 2010 for TDIU is not before the Board as this is the highest rating allowed. As such, service connection for a pelvic disability and TDIU are no longer before the Board for appellate consideration and will not be addressed herein. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the Board has taken jurisdiction of the issue of entitlement to an increased rating for right lower extremity radiculopathy as part and parcel of the claim for increased rating for a back disability per 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). Effective February 7, 2021, DC 5010 provides that traumatic arthritis is now to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes “additional functional loss—i.e., ‘the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’—including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to a rating in excess of 20 percent for a lumbar disability. The Veteran receives a 20 percent rating for his lumbar disability based on the General Rating Formula for the Spine under Diagnostic Code 5242. 38 C.F.R. § 4.71a, DC 5242. Under the General Rating Formula for the Spine, in pertinent part, a 20 percent evaluation is warranted where the evidence shows 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 kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. General Rating Formula for the Spine, Note (1). Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a ten percent evaluation requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months, and 20 percent evaluating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA amended DC 5243 to clarify to “assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses.” Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243). The Veteran underwent an examination in January 2013. He reported flare-ups where his pain was normally 10/10. He was unable to sleep and used hydrocodone medication. He had forward flexion of 40 degrees with painful motion at 20 degrees. Extension was 10 degrees, but had painful motion at 15 degrees. He was not able to perform three times repetitive use testing because of pain and spasms. He had functional loss and impairment in that he had less movement that normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. He did not have intervertebral disc syndrome (IVDS) In January 2016, the Veteran participated in an additional examination. He had pain that was aggravated by prolonged sitting, walking, and standing. He reported flare-ups where he would have daily pain of 10/10 that lasted 30 minutes. He did not report any other functional loss or impairment. He had forward flexion of 40 degrees and extension of 10 degrees. His range of motion did not contribute to functional loss. His pain did not result in or cause functional loss. He did not have pain with weight-bearing. He was able to perform three times repetitive use testing with no additional loss of function or range of motion. Concerning repeated use over time and flare-ups, the examiner found the examination was neither medically consistent nor inconsistent with the Veteran’s statements. He did not have ankylosis or IVDS. The Veteran had another examination for his lumbar disability in December 2018. He reported flare-ups where activity caused pain and had functional impairment where pain limited movement, walking, bending, and stooping. He had forward flexion of 60 degrees and extension of 20 degrees. He had pain that caused functional loss. He also had pain with weight-bearing. He was able to perform three times repetitive use testing with no additional loss of function or range of motion. While the examination was medically consistent with the Veteran’s statement describing functional loss with repetitive use over time and during flare-ups, the examiner was unable to say without speculation (due to pain) if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. He did not have ankylosis or IVDS. His most recent examination is from February 2020. At the time, he did not report flare-ups but had functional loss where he would need to lay down when the pain was bad. He had forward flexion of 60 degrees and extension of 20 degrees, both with pain that caused functional loss. He did not have pain with weight-bearing. He was able to perform three times repetitive use testing with no additional loss of motion. The examination was medically consistent with the Veteran’s statements regarding repetitive use. Pain caused functional loss, and his forward flexion was further limited to 45 degrees. He did not have ankylosis. IVDS was reported, but without prescribed bed rest. He did not have pain on passive range of motion or for non-weight bearing testing. VA medical records are fairly consistent with the above examinations and show that he used a TENS unit for his lumbar pain. After review of the competent and probative evidence, the Board resolves reasonable doubt in favor of the Veteran, and finds that the competent, probative evidence warrants a rating of 40 percent for the period on appeal. The January 2013 examination reported that the Veteran’s forward flexion, when limited by pain, was 20 degrees. Additionally, he has had periods with flare-ups and functional loss. He has reported significant pain that caused him to lay down. He also has less movement that normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. The Board acknowledges that at other examinations (December 2018 and February 2020), he has had better forward flexion (60 degrees). However, the Board finds that the Veteran’s lumbar disability has additional loss of function through pain that causes the above functional impairment and the Board finds that his symptoms are more nearly approximated by a rating of 40 percent for limited flexion and functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Moreover, the Board finds several factors produce a disability picture more nearly approximated by a 40 percent schedular rating. In this regard, the Veteran reports frequent pain, and he had less movement than normal and pain on movement. He has reported near daily pain of up to 10/10. 38 C.F.R. §§ 4.40, 4.59. An even higher rating is not warranted as the Veteran does not have unfavorable ankylosis as shown in the above reports. In this regard, the examinations show that while the Veteran has pain and functional impairment because of his limited range of motion, he is able to perform some range of motion which demonstrates that he does not have ankylosis. See 38 C.F.R. § 4.71a, Note (5) (“unfavorable ankylosis is a condition in which... the entire thoracolumbar spine... is fixed in flexion or extension”). Additionally, while at times he has flare-ups, he retains some range of motion. A higher rating of 60 percent for IVDS is not warranted as he had not had incapacitating episodes with total duration of at least six weeks during the past 12 months. The Veteran has not had IVDS that required bed rest per the controlling regulation. 2. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy. 3. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy. The Veteran receives 20 percent ratings for his bilateral lower extremity radiculopathy under DC 8620 for his left lower extremity and under 8520 for his right lower extremity. During the period on appeal for the increased rating for the lumbar spine, the RO granted service connection for right lower extremity radiculopathy and assigned a 20 percent rating, effective December 26, 2018, in a March 2019 rating decision. Complete paralysis of the sciatic nerve exists when the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. This is evaluated as 80 percent disabling. Severe incomplete paralysis with marked muscular atrophy is evaluated as 60 percent disabling. Moderately severe paralysis is evaluated as 40 percent disabling. Moderate paralysis is evaluated as 20 percent disabling, and mild paralysis is 10 percent disabling. 38 C.F.R. § 4.124a, Code 8520. The term “incomplete paralysis” indicates a degree of impaired function substantially less than the type of picture for “complete paralysis” given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. VA has recognized that moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. In Miller v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that “[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.” 28 Vet. App. 376, 380 (2017). Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123.   Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. The Veteran underwent an examination in January 2013. He had reduced muscle strength (4/5 active movement against some resistance) for his left lower extremity concerning hip flexion, knee extension, ankle plantar flexion and dorsiflexion, and great toe extension. He did not have muscle atrophy. He had hypoactive (1+) reflexes for his left knee and ankle. His sensation testing was normal. He had a positive straight leg raising test for his left side. The examiner reported moderate constant pain, intermittent pain, and paresthesias and/or dysesthesias for his left lower extremity. He had mild numbness. Moderate radiculopathy was documented. In January 2016, he participated in an additional examination. He had normal muscle strength (5/5) for his left lower extremity, and did not have atrophy. He had hypoactive (1+) reflexes for his knee and ankle. Sensation testing was normal, and he had a positive straight leg raising test for his left leg. He had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness for his left lower extremity. The examiner reported moderate radiculopathy of the left side. The Veteran had an examination for his lumbar disability in December 2018. He had normal muscle strength and no atrophy. He had decreased sensation testing for his left foot/toes. He had normal deep tendon reflexes. He had bilateral moderate constant pain, intermittent pain; and, for his left lower extremity, he had moderate paresthesias and/or dysesthesias, and numbness. Bilateral moderate radiculopathy was reported. Comparatively, an examination in December 2018, specifically for his peripheral nerves, had slightly different testing. He had moderate constant and intermittent pain (bilaterally), and severe (for his left lower extremity) and moderate (for his right lower extremity) paresthesias and/or dysesthesias and numbness. He had normal muscle strength and no atrophy. He had normal deep tendon reflexes, and had decreased sensation testing for his left foot/toes. He did not have trophic changes and he had an abnormal gait due to guarding. The examiner reported moderate incomplete paralysis of the sciatic nerve for the left lower extremity, and normal for the right. His most recent examination is from February 2020. He had reduced muscle strength (4/5 active movement against some resistance) for his right and left hip. He did not have atrophy. His deep tendon reflexes were normal, and he had normal sensation testing. His straight leg raising test was positive bilaterally. He had bilateral moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner reported moderate radiculopathy bilaterally. After review of the competent and probative evidence, the Board finds that ratings in excess of 20 percent are not warranted for any period on appeal. The Veteran did not have muscle atrophy or tropic changes. The Board acknowledges that the Veteran may have had transient severe symptoms (paresthesias and/or dysesthesias and numbness) for his left lower extremity in December 2018. However, the other December 2018 examination reported at most moderate symptoms. Additionally, the other competent medical evidence of record, to include other examination reports detailed above, show moderate symptoms. Overall, these examination reports reflect a disability picture of the bilateral radiculopathy that more nearly approximates one of moderate severity. The Board finds the evidence from the above examination reports to be competent and probative as it was gathered by medical professionals who physically examined the Veteran, to include for specific assessment of any neurological deficits. The Veteran also does not contend that his symptoms are more nearly approximated by higher ratings of moderately severe. As such, after review of the competent lay and medical evidence, ratings in excess of 20 percent are not more nearly approximated or warranted. 38 C.F.R. §§ 4.3, 4.7.   REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for a total left knee replacement from December 1, 2018 onward is remanded. 2. Entitlement to a rating in excess of 30 percent for a total left hip replacement from May 1, 2011 onward and 50 percent from December 26, 2018 onward is remanded. 3. Entitlement to a rating in excess of 10 percent for a left knee disability prior to October 27, 2015, and between January 1, 2017 and October 2, 2017 is remanded. 4. Entitlement to a compensable rating for a left knee disability (limited extension) prior to October 27, 2015 and from January 1, 2016 and October 2, 2017 is remanded. 5. Entitlement to a rating in excess of 10 percent for a left hip disability (degenerative joint disease) prior to December 17, 2009, and from March 1, 2010 and March 24, 2010 is remanded. The Board remanded these issues in July 2019 for Sharp and Correia compliance, directing the examiner to test and record range of motion in active, passive, weight-bearing, and non-weight bearing. Sharp v. Shulkin, 29Vet. App.26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran participated in examinations for his hip and knee in February 2020. The examiner partially complied with the Board’s directives from July 2019. The examiner found that the Veteran had objective evidence of pain on passive range of motion testing and pain on non-weight-bearing testing for his hip and knee. However, while the examiner reported that a goniometer was used for all joint range of motion testing, range of motion testing was not provided for passive and non-weightbearing for his hip and knee.   The Board finds these examination reports did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). While the examiner noted that there was evidence of pain during passive range of motion testing and non-weight-bearing testing of the hip and knee, she did not include actual range of motion findings. Although the Board regrets the need for further delay, this appeal must be remanded to correct that error and obtain an adequate examination to evaluate the current severity of the Veteran’s service-connected disabilities in accord with prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. Schedule an examination to assess the current nature and severity of his service-connected left hip and left knee disabilities. Send the file to an appropriate examiner and ask the clinician to review the claims file. Ensure the examiner has access to the claims file, to include a copy of this Remand. Range of motion (active motion, passive motion, and pain with weight-bearing and without weight-bearing) are to be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. 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 flare ups of his service-connected hip and knee disabilities, and how he characterizes the additional functional loss during a flare-up and with repeated use over time. If the Veteran describes experiencing flare ups, identify the: (a.) frequency; (b.) duration; (c.) precipitating factors; and (d.) alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up, range of motion is additionally limited. If limited, please try to provide an estimate of how far in degrees. If it is not possible to provide a specific measurement based on direct observation, the examiner is to provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. **Additionally, the examiner is to provide a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, for the December 2018 examinations. For the examination, the examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.** As above, when providing the retrospective opinion, if it is not possible to provide a specific measurement based on direct review of the record, the examiner is asked to provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Regarding the above directives requesting opinions, if more than one examiner is utilized, then inform EACH examiners that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.