Citation Nr: 21027810 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-20 452 DATE: May 6, 2021 REMANDED The increased rating claim for a lumbar spine disability is remanded. The claim of an increased, compensable rating for the period prior to September 30, 2020, and for a rating in excess of 10 percent, for the period beginning September 30, 2020, for the right thumb disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1989 to July 1993; and from October 1993 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In February 2020, the Board remanded the case to the AOJ for further evidentiary developments. The Board acknowledges that the Veteran asserted entitlement to service connection for a left hip disability, to include as secondary to a service-connected low back disability, in an April 2021 post-remand appellate brief. However, in a November 2020 rating decision, the AOJ granted this service connection claim for the left hip. Thus, as this constitutes as a full grant of benefits sought, this service connection claim for the left hip disability is no longer before the Board, on appeal. Additionally, in this November 2020 rating decision, the AOJ increased the right thumb disability rating to 10 percent, effective September 30, 2020; and it granted a temporary, 100 percent rating for treatment for the Veteran's service-connected lumbar spine disability, effective May 8, 2001 to August 31, 2001, with a 10 percent disability rating, beginning September 1, 2001. However, since the rating increased for the thumb and lumbar spine disabilities not representative of a total grant of the benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Nonetheless, in a March 2021 correspondence, the Veteran asserted that the AOJ did not address numerous issues or they were "completely forgotten", to include the following: (1) the removal of the award for his left knee disability; (2) the fracture of his right thumb was dated incorrectly; (3) his right knee compensation was dated incorrectly; (4) his surgical scar, status post lumbar decompression and fusion from surgery were never rated; (5) radiculopathy of the right lower extremity, sciatic nerve was not rated; (6) the rating for an impairment of the left thigh was dated correctly; and that (7) the effective date for his left hip impairment was dated incorrectly. With respect to the Veteran's service-connected left knee, the Veteran was initially awarded a 10 percent disability rating for left knee patellofemoral pain syndrome, effective October 21, 1996. Although the January 2013 rating decision denied an increased rating claim for the left knee disability, the Veteran failed to file a notice of disagreement for this issue, but rather, impermissibly attempted to perfect an appeal of this issue in a June 2015 VA Form 9: Appeal to the Board of Veterans' Affairs. Consequently, this increased rating claim for the left knee was not certified for appeal, and thus, this issue is not before the Board, on appeal, as the Board does not have jurisdiction over the increased rating claim for a left knee disability. Nonetheless, the most recent rating codesheet still reflects that the Veteran is still service-connected for his left knee disability, and that this award has been effective since October 21, 1996. With respect to the rest of his claims, it appears that the Veteran may be challenging the November 2020 rating decision, with respect to the effective date assigned for the award of the rating disabilities for his service-connected right thumb fracture and right knee; the non-compensable ratings that were assigned for the service-connected lumbar spine surgical scar, radiculopathy of the right lower extremity/sciatic nerve, and left thigh; and the effective date of the award of service connection for the left hip. With respect to his assertion that his mechanical low back pain is very painful, the Board is remanding this issue, and thus, the Board will address this argument after the AOJ undertakes additional developments with respect to this issue. Increased Rating Claims for Right Thumb and Lumbar Spine Disabilities As noted above, the Board remanded the increased rating claims for the right thumb and lumbar spine disabilities in February 2020, for additional development, to include scheduling the Veteran for a VA examination that complies with the criteria established by Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. Mcdonald, 28 Vet. App. 158 (2016). In September 2020, the Veteran was afforded VA examinations for the lumbar spine and for hand and finger conditions. In each examination report, for the lumbar spine and for the hand and finger conditions, the VA examiner noted that the Veteran reported having flare-ups. Specifically, the September 2020 VA examination report for the lumbar spine noted that the Veteran reported having flare-ups of the lumbar spine, with a frequency of one week, a severity in pain rated at 10/10; and a duration of 24 to 36 hours. The September 2020 VA examination report for hand and finger conditions also noted that the Veteran reported having flare-ups of the thumb joint, but the VA examiner merely noted that during flare-ups, the Veteran cannot use or bend his thumb; and that his flare-ups cause pain and immobility. On testing for range of motion, both September 2020 VA examination reports for the lumbar spine and for hand and finger conditions reflected that each respective examination was not conducted during a flare-up. Although the VA examination report for the lumbar spine noted the frequency, duration, and severity of the flare-ups of the lumbar spine, whereas the VA examination report for hand and finger conditions merely noted the functional impact of the flare-ups of the thumb joint, the September 2020 VA examination report for the lumbar spine and the September 2020 VA examination report for hand and finger conditions did not sufficiently elicit all of the requisite information from the Veteran about his flare-ups. Applicable to these claims, when evaluating musculoskeletal conditions and a VA examiner acknowledges that the veteran was not suffering from a flare-up of any his conditions during the examination, the VA examiner "must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the [veteran himself]." Sharp, 29 Vet. App. at 32; see also DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995) (holding that a VA medical examination that fails to take into account the factors listed in 38 C.F.R. §§ 4.40 and 4.45, including those experienced during flare ups, is inadequate for evaluation purposes). Thus, as the VA examiner for both VA examination reports did not obtain all the requisite, above-mentioned information about the Veteran's flare-ups for his thumb and lumbar spine disabilities, a remand is required for new, complete VA examinations for the thumb and lumbar spine disabilities, which contemplate all pertinent factors, such as, for example, the criteria established by Sharp. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to determine the current severity of the Veteran's thumb and lumbar spine disabilities. The appropriate disability benefits questionnaire form should be utilized for each disability. The VA examiner must undertake the following: a. For each disability, conduct range of motion testing, specifically noting the motion in degrees, in both active motion and passive motion, and in both weight-bearing and non-weightbearing. See Correia v. McDonald, 28 Vet. App. 158, 169 170 (2016). b. If the Veteran has reported any periods of flare ups, but range of motion testing could not be conducted during a flare up, state the severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment. See Sharp, 29 Vet. App. at 26, 32. c. In conducting this examination, the VA examiner must indicate whether pain could significantly limit functional ability, during flare-ups, or with repeated use over a period of time; and specifically, where feasible, describe any limitations, in terms of the degree of additional range-of-motion loss due to pain on use or flare-ups. d. If the VA examiner concludes that functional loss cannot be determined without resorting to speculation, the VA examiner must indicate this, with a clear detailed rationale. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.