Citation Nr: 21027781 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 19-36 385 DATE: May 6, 2021 REMANDED The issue of a rating in excess of 20 percent for degenerative disc disease of the lumbar spine at L4-5 and L5-S1 status post lumbar fusion and microdiscectomy is remanded. The issue of a rating in excess of 10 percent for sciatic nerve radiculopathy of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2002 to November 18, 2006. He had a second period of service from November 19, 2006, to January 2010; however, the character of discharge from his second period of service is considered a bar to the payment of VA benefits. The Veteran died in January 2019. In March 2019, the Veteran's surviving spouse submitted a timely request to substitute in the appeal pending at the time of his death. In August 2019, the agency of original jurisdiction (AOJ) notified the surviving spouse that she had been recognized as the substituted claimant in the current appeal. The Veteran's surviving spouse has been properly substituted; she is the appellant in this case. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision. In March 2020, the Board denied entitlement to a rating in excess of 20 percent for the Veteran's lumbar spine disability and granted a separate, 10 percent rating for radiculopathy of the left lower extremity. The Board also remanded the issues of entitlement to higher disability ratings for service-connected left knee strain and acne disabilities, directing the AOJ to send the appellant and her agent a statement of the case (SOC) and to return those issues to the Board if the appellant perfected a timely appeal by submitting a VA Form 9. The appellant did not appeal those issues to the Board. The appellant appealed the Board's decision denying a rating higher than 20 percent for the low back disability and higher than the 10 percent rating granted for left lower extremity radiculopathy to the Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court granted a November 2020 Joint Motion for Partial Remand (Joint Motion), vacating those portions of the Board's decision that denied higher ratings than those assigned and granted for the low back and left lower extremity radiculopathy disabilities and remanding for additional proceedings. 1. The issue of a rating in excess of 20 percent for degenerative disc disease of the lumbar spine at L4-5 and L5-S1 status post lumbar fusion and microdiscectomy is remanded. VA received the Veteran's Intent to File a Claim for Compensation (VA Form 21-0996) on December 18, 2015, and his claim for an increased rating for his lumbar spine disability on December 21, 2015, which he believed was "currently rated at 10 [percent]." In fact, his lumbar spine disability has been rated 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243 since service connection was established effective March 24, 2010. (Although portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5243, which pertains to intervertebral disc syndrome, was not changed). The parties to the Joint Motion agreed that the March 2020 Board decision failed to discuss evidence of record materially favorable to the appellant's claim. The parties observed that "the Board noted that [the Veteran] did not 'endorse experiencing flare-ups of pain on the April 2016 [VA spine] examination or otherwise...' and that therefore an increased rating pursuant to this Court's decision in Sharp v. Shineski [sic] was not applicable." "Additionally, the parties note[d] that the Board also failed to discuss the favorable evidence of flare-ups of left lower extremity radiculopathy in considering a separate rating for that condition." The parties emphasized that the Board's conclusion that the [Veteran] did not endorse flare-ups was inconsistent with medical evidence of record documenting such reports. Specifically, a May 28, 2013 VA treatment record, which precedes the date VA received the Intent to File a Claim for Compensation by more than one year, reflects the Veteran's report of a "[f]lare up [of] low back and left radicular leg pain over the past [two] months" with no identifiable trigger. The impression was radicular back pain. Also, a September 12, 2016 VA [nursing] treatment record shows the Veteran reported "having a flare up that started about a month ago, complaining of "low back pain that radiates down [the left] leg with shooting pain up and down and occ[asional] numbness to [the left] foot." He reported the same symptoms to the examining physician and rated the severity of his back and left leg pain as 10/10. The Board is directed to "discuss this materially favorable evidence of record and apply it to Appellant's claim consistent with this Court's directives in Sharp." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court addressed the "duties of a VA examiner when assessing a musculoskeletal disability and the circumstances in which the Board may accept as adequate a VA examiner's statement that an opinion cannot be provided without resorting to speculation." Sharp v. Shulkin, 29 Vet. App. 26, 31 (2017). When examining a musculoskeletal disability, a VA examiner must consider whether the disability causes additional functional loss due to the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, including as due to pain. Id. at 32 (citing 38 C.F.R. § 4.40). In addition, the examiner must consider whether there is a reduction of a joint's normal excursion of movement in different planes, including due to less or more movement than normal; weakened movement; excess fatigability; incoordination; or pain on movement, swelling, deformity, or atrophy of disuse. Id. (citing 38 C.F.R. § 4.45). When a flare-up is not observable at the time of examination, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Id. at 34. To comply with the Joint Motion, the Board must remand the appeal to obtain a retrospective medical opinion to estimate the functional loss that would occur during flare-ups of the Veteran's lumbar spine disability, expressed "in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." See id. at 32 and 34 (citing DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). 2. The issue of a rating in excess of 10 percent for sciatic nerve radiculopathy of the left lower extremity is remanded. As detailed above, the March 2020 Board decision granted a separate 10 percent rating for left lower extremity radiculopathy associated with the Veteran's service-connected lumbar spine disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (directing VA to evaluate any associated objective neurologic abnormalities under an appropriate diagnostic code). The Veteran's radiculopathy is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, which pertains to paralysis of the sciatic nerve. VA regulations acknowledge that functional loss involving the musculoskeletal system may be due to defective innervation and that weakened movement of a joint may be due to disease or injury of peripheral nerves. 38 C.F.R. §§ 4.40, 4.45(c). In comparison, neurological disabilities, such as sciatic nerve radiculopathy, are evaluated and rated pursuant to regulations pertaining to neurologic conditions and compulsive disorders found at 38 C.F.R. §§ 4.120 through 4.124a. Neurologic disability is ordinarily rated in proportion to the impairment of motor, sensory, or mental function, and in rating peripheral nerve injuries specifically, attention is given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Sharp v. Shulkin, supra, specifically addressed the "responsibilities of a VA examiner and the Board when an examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability." Sharp, 29 Vet. App. at 29 (emphasis added). Still, to comply with the Joint Motion, the Board must remand the appeal for a higher rating for left lower extremity radiculopathy to apply the holding in Sharp v. Shulkin to "favorable evidence of flare-ups of left lower extremity radiculopathy in considering a separate rating for that condition." The matters are REMANDED for the following action: 1. Provide the Veteran's electronic claims file to an appropriate clinician to obtain a retrospective medical opinion regarding any additional functional loss during flare-ups of the Veteran's lumbar spine disability and associated sciatic nerve radiculopathy of the left lower extremity during the pendency of this appeal and prior to his death in January 2019. The reviewing examiner must address the May 28, 2013 VA treatment records in which the Veteran reported a flare-up of low back and left radicular leg pain over the past two months and the September 12, 2016 VA treatment records that reflect his complaints of a flare-up of low back pain that radiated down his left leg during the past month. Following a review of the claims file, including consideration of all procurable and assembled data, and to the extent possible, the reviewing examiner should provide an opinion as to any additional functional loss of the lumbar spine and left lower extremity radiculopathy disabilities due to flare-ups and with repeated use over time, expressed in additional degrees of range of motion lost. If an opinion cannot be provided without resorting to speculation, the reviewing examiner must explain whether the basis for that conclusion (a) reflects the limitation of knowledge in the medical community at large; or (b) reflects a limitation of the reviewing examiner him/herself, whether based on lack of expertise, insufficient information, or unprocured testing. The reviewing examiner should identify what specific fact(s) cannot be determined. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.