Citation Nr: 21025786 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-07 162 DATE: April 29, 2021 REMANDED A claim of entitlement to a disability rating greater than 10 percent prior to December 17, 2020 for a lumbar strain, and 20 percent, thereafter, is remanded. A claim of entitlement to disability rating greater than 10 percent prior to September 17, 2020, and in excess of 20 percent thereafter for sciatic nerve paralysis, left lower extremity radiculopathy, is remanded. A claim of entitlement to a disability rating greater than 10 percent for left knee chondromalacia is remanded. A claim of entitlement to a disability rating greater than 10 percent for right knee chondromalacia is remanded. REASONS FOR REMAND The Veteran had active service from June 1988 to August 1990. The Veteran’s claims of entitlement to increased ratings for his service-connected lumbar strain and bilateral knee chondromalacia come before the Board of Veterans’ Appeals (Board) from an October 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran’s rating related to his service-connected left lower extremity radiculopathy is now before the Board due to a recent decision of Chavis v. McDonough issued by the United States Court of Appeals for Veterans Claims (Court). See Chavis v. McDonough, No. 18-2928 (April 6, 2021). One of the holdings in Chavis v. McDonough is that if the issue of entitlement to an increased rating for radiculopathy is determined to be within the scope of the claim for an increased rating for a spinal disability on appeal, the Board has jurisdiction to address the ratings for associated radiculopathy without requiring a separate notice of disagreement (NOD) as to the radiculopathy ratings. After the Board’s most recent remand (discussed below), the RO issued a rating decision in December 2020 that not only granted an increased rating for the Veteran’s lumbar strain, but also granted an increased rating from 10 percent to 20 percent for service-connected left lower extremity radiculopathy as the issue was determined to be inextricably intertwined with the Veteran’s lumbar spine claim. The Board agrees with the RO’s determination that the issues are inextricably intertwined, and therefore finds it has jurisdiction to review the disability rating assigned for the Veteran’s left lower extremity radiculopathy. PROCEDURAL HISTORY Procedurally, this appeal has previously been before the Board four times. In August 2015, the Board remanded the appeal based upon VA’s duty to assist the Veteran in obtaining outstanding medical records and afforded VA examinations to assess the current severity of his bilateral knee disabilities and lumbar strain. The Board gave specific instructions to the medical examiners as to the medical guidance needed to evaluate the Veteran’s claims. Thereafter, a Back Conditions Disability Benefits Questionnaire (Back DBQ) examination report and Knee and Lower Leg Conditions Disability Benefits Questionnaire (Knee DBQ) examination report, both undertaken on December 22, 2015, were associated in the claims file. In December 2017, the appeal was remanded again on the basis that good cause was shown for the Veteran missing a VA back examination scheduled in August 2016 (therefore, the RO was directed to schedule the Veteran for a new VA back exam) and to ensure that the Veteran’s VA examinations complied with a recent decision from the Court, Correia v. McDonald, 28 Vet. App. 158 (2016). In this regard, the VA examiners evaluating the Veteran’s back and knees were instructed to (among other things): Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done. See Board remand, pgs. 4, 5. Thereafter, a Back DBQ examination and Knee DBQ examination were undertaken on January 5, 2018. The reports were subsequently associated with the claims file. The case was before the Board for a third time in February 2019, when the Veteran’s claims were denied. The Veteran appealed the Board’s February 2019 decision to the Court. In December 2019, based on a Joint Motion For Remand (JMR), the Court vacated the February 7, 2019 Board decision to the extent that it denied the claims of entitlement to ratings in excess of 10 percent for a lumbar strain, in excess of 10 percent for right knee chondromalacia patella and in excess of 10 percent for left knee chondromalacia patella. Another issue on appeal at that time, the denial of entitlement to a disability rating greater than 10 percent for right knee instability, was withdrawn and dismissed. Per the JMR, the Court remanded the issues on appeal. In remanding the issues on appeal, the Court found that the Board erred when it relied on the December 2015 and January 2018 medical opinions (referenced above) as they were inadequate to adjudicate the claims. See JMR, December 12, 2019. As for the Veteran’s lumbar strain, the Court held that the medical opinions were not in substantial compliance with the 2015 and 2017 Board remand directives. Specifically, it stated that the December 2015 DBQ examination failed to sufficiently respond to the Board’s inquiry regarding functional loss or limitation of range-of-motion due to flare-ups and did not contain sufficient information pertaining to any additional limitation of range-of-motion or functional loss during flare-ups. As for the January 2018 opinion, the Court stated that the examiner did not estimate or adequately explain why she was unable to opine as to whether the Veteran would experience additional functional loss or describe any additional loss in range-of-motion with repetitive use over time or due to flare-ups, and that the examiner did not explain the notation that “passive range of motion “ testing could not “be performed or is not medically appropriate.” Id. As for the Veteran’s bilateral knee claims, the Court found that the December 2015 and January 2018 VA medical opinions also did not substantially comply with the 2015 and 2017 Board remand instructions. The Court noted that both the December 2015 and January 2018 medical opinions failed to sufficiently address additional functional loss or limitation of motion, including flare-ups. In addition, both medical opinions failed to contain sufficient information or testing results, as the December 2015 examiner noted pain on flexion, but failed to provide information regarding any limitation in terms of degrees or perform the requisite testing. The January 2018 examiner also failed to provide information regarding any limitation of function in terms of degrees for repetitive-use-testing and failed to perform passive range-of-motion testing. Given the foregoing, the Board remanded the Veteran’s back strain and bilateral knee claims in July 2020 for new medical opinions that considered the current severity of the Veteran’s disabilities and complied with the Court’s order that the remand directives from the Board’s previous August 2015 and December 2017 decisions be fulfilled. The Veteran was afforded Back and Knee DBQs on December 17, 2020. Those reports have been associated with the claims file. DECEMBER 17, 2020 VA EXAMINATION REPORTS Unfortunately, a review of the December 2020 DBQ reports reveals that they, despite the examiner’s and the RO’s obvious best efforts, do not entirely comply with the Board’s August 2015, December 2017, and July 2020 remand directives. In this regard, the Board explained the medical findings of Veteran’s examinations needed to include range of motion findings as set forth in the Court’s decision of Correia v. McDonald, supra. In addition, the Board notes that, “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38C.F.R. §4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 (2016) states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” See July 2020 Board decision, p.3. The examiner was instructed: Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” then the examiner must specifically indicate why that testing cannot be done. Id., p.5. A review of the “SECTION XVII – REMARKS” in the Back DBQ report reveals that the doctor who evaluated the Veteran did not perform passive range of motion testing for the back, marking with an “x” the option answer that such evidence could not be performed or was not medically appropriate. The doctor did not provide further explanation of this finding, contrary to the Court’s order that the notation that passive range of motion testing could not be performed must be explained. See JMR, December 12, 2019, p.7 (“The examiner failed to explain her notation that “passive range of motion” testing “[c]annot be performed or is not medically appropriate.” Therefore, the VA opinion is inadequate”) (citations omitted). As for the Knee DBQ, a review of the report under “SECTION XV – REMARKS” reveals that the doctor noted the Veteran had objective evidence of pain when both the left and right knees were in weight-bearing, but failed to provide passive range of motion measurements contrary to the mandates of the Court’s order. See JMR, December 12, 2019, p.9 (“The January 2018 VA examiner also failed to provide information regarding any limitation of function in terms of degrees for repetitive-use-testing and did not perform passive range-of-motion-testing”). As the above-referenced errors must be remedied prior to the Board being able to evaluate the Veteran’s claims, another remand is unfortunately necessary. The matters are REMANDED for the following actions: 1. Obtain an addendum medical opinion from the December 17, 2020 Back DBQ medical doctor, if available, requesting an explanation as to why the Veteran’s joint could not be tested on “weight-bearing” as indicated on pages 12/13 of the report. 2. Obtain an addendum medical opinion from the December 17, 2020 Knee DBQ medical doctor, if available, requesting passive range of motion measurements as requested on pages 16/17 of the report. If such measurements cannot be obtained without an examination of the Veteran, one should be scheduled for him. 3. Readjudicate the Veteran’s claims, observing that VA recently changed its regulations involving the musculoskeletal system. Where appropriate, the new regulations should be applied. D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Talpins 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.