Citation Nr: 21024372 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-15 534 DATE: April 22, 2021 REMANDED Entitlement to a rating in excess of 40 percent for post-operative, lumbar spine microdiscectomy residuals (times 2) with history of chronic muscular strain, herniate nucleus pulposus (HPN) and degenerative instability (hereinafter ‘back disability”), is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity femoral radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity femoral radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to June 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for a back disability, rated 20 percent disabling, effective April 29, 2008. In a February 2010 rating decision, the RO increased the rating to 40 percent, effective the same date. In a February 2013 rating decision, the RO granted separate 10 percent ratings for peripheral neuropathy of the right and left lower extremities, effective May 15, 2012, as secondary to the Veteran’s back disability. In August 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. This case was remanded in March 2019 and March 2020 for further development; it is now again before the Board. In a March 2021 rating decision, the RO granted separate 10 percent ratings for right and left lower extremity femoral nerve radiculopathy, effective January 25, 2021. As entitlement to separate compensable ratings for radiculopathy/ neuropathy is part and parcel of the increased rating claim for the Veteran’s back disability, the Board will consider the entire appeal period to determine if entitlement to separate compensable ratings, or increased ratings for those currently assigned, is warranted at any time during the rating period. 38 C.F.R. § 4.71, General Rating Formula, Note 1. 1. Entitlement to a rating in excess of 40 percent for a back disability is remanded. VA examinations must include joint testing for active and passive motion in both weight-bearing and nonweight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). To date, and despite multiple remands, the VA spine examinations of record do not fully comport with the requirements of Correia or Sharp. See, e.g., January 2021 VA examination. Particularly, while the January 2021 VA examiner noted pain on all active and weight-bearing ranges of motion, he did not note the point in the range of motion in which pain began. Thus, remand is necessary for a new VA spine examination. 2. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy is remanded. 3. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy is remanded. 4. Entitlement to a rating in excess of 10 percent for right lower extremity femoral radiculopathy is remanded. 5. Entitlement to a rating in excess of 10 percent for left lower extremity femoral radiculopathy is remanded. The issues of entitlement to increased ratings for bilateral lower extremity peripheral neuropathy and femoral radiculopathy are inextricably intertwined with the Veteran’s claim for an increased rating for his back disability, which is being remanded; accordingly, these issues must be remanded as well. The matters are REMANDED for the following action: 1. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received that have not previously been obtained. The Veteran must assist in the matter by identifying any private healthcare providers and by submitting releases for VA to obtain any private records identified. 2. Obtain copies of VA treatment records from November 2020 to the present. 3. After the above development is completed, arrange for an orthopedic examination (to include telehealth interview if necessary) of the Veteran to assess the current severity of his service-connected back disability. 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. Range of motion measurements should be included for active and passive motion in both weight-bearing and nonweight-bearing circumstances, including for the opposite undamaged joint, if applicable. The Board emphasizes here that 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. The examiner should also identify any neurological findings in the left and right lower extremities related to the service-connected back disability for the entire appeal period (April 2008), and fully describe the extent and severity of those symptoms. Specifically, the examiner should indicate, to the extent possible, the earliest date radiculopathy or neuropathy of the right and left lower extremities was shown, identify the specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of each nerve (that is, whether it is mild, moderate, moderately severe, or severe in nature). 4. 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 T. Matta, 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.