Citation Nr: 21023818 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-59 220 DATE: April 21, 2021 ORDER Entitlement to service connection for bilateral lower extremity radiculopathy as secondary to service-connected degenerative arthritis of the lumbar spine is granted. REMANDED Entitlement to an initial compensable rating from December 12, 2014, through August 31, 2016 and in excess of 20 percent thereafter for degenerative arthritis of the lumbar spine. FINDING OF FACT The evidence of record demonstrates that the Veteran has bilateral lower extremity radiculopathy associated with his service-connected degenerative arthritis of the lumbar spine. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral lower extremity radiculopathy as secondary to the service-connected degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1974 to March 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran initially filed a Notice of Disagreement (NOD) to the denial of an increased rating for degenerative arthritis of the lumbar spine, the left foot, and a 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities. However, in his November 2016 Form 9 filing he limited the denial to an increased rating for degenerative arthritis of the lumbar spine. Therefore, the Board only considers the Veteran’s claim for an increased rating for degenerative arthritis of the spine. In August 2020, the Veteran appeared before the undersigned in a virtual hearing; a transcript of the hearing is of record. Entitlement to service connection for bilateral lower extremity radiculopathy During the pendency of the Veteran’s lumbar spine increased rating claim, the Veteran has complained of bilateral lower extremity radiculopathy. At his August 2020 hearing, the Veteran testified that his lumbar spine is manifest by neurologic impairment of his lower extremities. Specifically, he reported burning, aching and/or sharp pains from his hips to his toes, bilaterally. See August 2020 Hearing Transcript. The Board notes that the issue of entitlement to service connection for bilateral lower extremity radiculopathy was adjudicated by the RO and denied for a lack of diagnosis. However, under the rating criteria for disabilities of the spine, neurological abnormalities are to be considered in claims regarding conditions of the spine and separately rated. See 38 C.F.R. § 4.71a, DC 5242, Note (1). Therefore, the Board is accepting jurisdiction over this issue for purposes of granting service connection as part of the Veteran’s increased rating claim for his lumbar spine. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a), (b). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Upon review of the record, the Board finds that service connection for bilateral lower extremity radiculopathy as secondary to the Veteran’s service-connected lumbar spine disability is warranted. In this regard, the March 2015 VA examination that service-connected the Veteran’s lumbar spine disability and noted the diagnosis as intermittent recurrent sciatica with degenerative disease. The examiner noted the Veteran’s complaints of pain traveling down his right leg. VA medical treatment notes show lower extremity pain related to the Veteran’s back disability. Specifically, a May 2015 VA treatment note diagnosed sciatica and a July 2016 VA treatment note documented a history of lower back pain with radiation down the back of the right leg to the calf and more recently in the left calf. A September 2016 VA treatment note documented intermittent aching in calves with a history of degenerative disc disease in the lumbar spine and a long history of sciatica and consideration of “S1 radiculopathy”. May 2017 and August 2020 VA treatment notes assessed the Veteran with “low back pain with sciatica due to DDD”. Private treatment records also reflect that the Veteran has low back pain that radiates into his lower extremities. There is documented history of bilateral lower extremity radiculopathy as far back as October 2003. See October 2003 Roanoke Clinic Medical Treatment Record. A September 2018 private treatment note documented bilateral lower extremity “lumbosacral radiculopathic changes with particular attention being directed to the L-5 nerve root”. The Board acknowledges that the March 2015 and June 2016 VA examinations indicate that the Veteran did not have radiculopathy. However, each documents the Veteran’s complaints of lower extremity pain, the March 2015 examination diagnosed sciatica and there is ample evidence, as discussed above, indicating the Veteran has lumbar radiculopathy in both lower extremities. Additionally, since those VA examinations were conducted, there is otherwise no evidence of record to contradict the medical evidence indicating that the Veteran has lumbar radiculopathy. Accordingly, and resolving any reasonable doubt in the Veteran’s favor, entitlement to service connection for bilateral lower extremity radiculopathy is granted. REASONS FOR REMAND 1. Entitlement to an initial compensable rating from December 12, 2014, through August 31, 2016 and in excess of 20 percent thereafter for degenerative arthritis of the lumbar spine is remanded. The Veteran contends that his lumbar spine disability is more severe than is currently rated. The Veteran reports he has pain with bending over and with sitting and standing. See August 2020 Hearing Transcript. He also reports having pain most days that he tolerates, and more activity makes his pain a lot worse. In Correia v. McDonald, 28 Vet. App. 158 (2016), 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. It does not appear that the examination conformed to the Court’s holdings in Correia. For example, the VA examiner noted that there was evidence of pain on passive, weight-bearing, and non-weight-bearing range of motion, but did not report the range of motion at which pain began and did not delineate the range of motion upon active motion, passive motion, weight-bearing, and non-weight-bearing. The Court further concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of range of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Veteran underwent an examination in March 2015 where he complained of experiencing “severe muscle spasms and trouble standing” and needing assistance from his wife to get out of bed. He also complained of “pain traveling down my right leg. At times all the way to my calf muscles.” The examiner diagnosed intermittent recurrent sciatica with degenerative disease. Flareups were described as so bad that at times the Veteran “would have to take vacation time to go home and recoup”. The examiner found initial ranges of motion were normal with no objective evidence of pain, no change in range of motion on repetition and no functional loss or additional limitation in range of motion. There was no guarding or muscle spasm, normal muscle strength testing with no atrophy, normal deep tendon reflexes, normal sensory exam, negative straight leg test, no radiculopathy and no intervertebral disc syndrome (IVDS). There was x-ray documentation of arthritis. Contrary to the Veteran’s contentions of flare-ups, the examiner failed to document whether and how these flareups could limit functional ability with pain, weakness, fatigue and/or incoordination or to provide estimates of loss of range of motion. In a September 2016 VA examination the Veteran complained of daily and constant pain, manifesting in “tenderness, stiffness, easy fatigue, giving way, locking, numbness and tingling down the right leg” with reported flareups as “mainly in the right lower back and leg, but both legs and feet do hurt”. The examiner diagnosed degenerative arthritis of the lumbar spine. The examination noted no functional loss. The initial range of motion was normal with pain noted on the examination, but the examiner failed to detail which range of motion was painful and to what degree. There was evidence of pain with weight bearing and mild tenderness of the paraspinal and bilateral infrascapular latissium dorsalis region. The Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion. No evidence of pain, weakness, fatigability or incoordination after repeated use over time and flareups do not significantly limit functional ability with pain, weakness, fatigability or incoordination and localized tenderness does not result in an abnormal gait or spinal contour. There was no guarding or muscle spasm, normal muscle strength testing with no atrophy, normal deep tendon reflexes, normal sensory exam, negative straight leg test, no radiculopathy and no intervertebral disc syndrome (IVDS). Contrary to the Veteran’s contentions of flare-ups, the examiner failed to document whether and how these flareups could limit functional ability with pain, weakness, fatigue and/or incoordination or to provide estimates of loss of range of motion. Moreover, the examiner failed to document the range of motion on which observable pain began. As the examinations performed during the course of the appeal do not conform to the Court’s holdings in Correia and Sharp, a remand is necessary in order to afford the Veteran a VA examination for the lumbar spine that addresses such matters. The matter is REMANDED for the following actions: 1. Update the record for any VA or private treatment records. The most recent VA records date to August 2020. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. 2. Schedule the Veteran for a VA examination to assess the severity of the service-connected lumbar spine disability. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. 3. Specifically, the Veteran’s lumbar spine should be tested for pain in both weight-bearing and non-weight-bearing positions, and on both active and passive motion. The examiner should state whether unfavorable ankylosis of the entire thoracolumbar spine exists. If this cannot be performed, the examiner should explain why. The examiner should record the range of motion of the joints observed on clinical evaluation in terms of degrees. The examination must include testing results of both active and passive motion, and in weight-bearing and non-weight-bearing. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If the Veteran reports flare-ups, the examiner should ask him to report or demonstrate his range of motion during the flare-ups. 4. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. 5. If the VA examiner is unable to report the degree of additional range of motion loss during repeated use or a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during on repeated use or flare-ups or explain why it is not feasible to render such an opinion. If the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up.   7. If the examiner cannot provide an opinion as to additional loss of motion on repeated use or during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelsey Love, 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.