Citation Nr: 21028897 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-17 395 DATE: May 12, 2021 REMANDED Service connection for a right hip disability is remanded. A disability rating in excess of 10 percent for right knee injury with degenerative joint disease is remanded. For the period from June 24, 2009 to October 25, 2015, a disability rating in excess of 10 percent for lumbar spondylosis and spondylolisthesis with degenerative arthritis of the spine is remanded. For the period from October 26, 2015, a disability rating in excess of 20 percent for lumbar spondylosis and spondylolisthesis with degenerative arthritis of the spine is remanded. A disability rating in excess of 10 percent for radiculopathy, right lower extremity, is remanded. A disability rating in excess of 10 percent for radiculopathy, left lower extremity, is remanded. REASONS FOR REMAND The Veteran had active service from July to November 1967, and from July to August 1970. In a February 2020 decision, the Board of Veterans' Appeals (Board) denied the issues in appellate status. The Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court). Pursuant to an October 2020 Joint Motion for Remand (JMR) and Court Order, the decision was vacated and remanded for action consistent with the JMR. Right hip The Veteran has asserted that he has a right hip disability due to service and/or due to or aggravated by his right knee disability. Per the JMR, an opinion must be sought as to whether the Veteran's right hip disability is due to falls sustained as a result of his service-connected right knee disability giving out. See 10/09/2019 Buddy/Lay Statement; see 04/02/2019 Medical Treatment Record-Government Facility at 28, 58; see 12/16/2016 CAPRI at 3, 9; see 12/16/2016 CAPRI at 22; see 01/19/2011 VA Examination at 5. Right knee While the record contains contemporaneous VA examinations regarding the Veteran's right knee disability, per the JMR the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The examinations do not contain passive range of motion measurements and do not consider pain on weight-bearing testing. An examination must be scheduled to asess the severity of the Veteran's right knee disability. Lumbar spine While the record contains contemporaneous VA examinations regarding the Veteran's lumbar spine disability, per the JMR, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). An examination must be scheduled to assess the severity of the Veteran's lumbar spine disability. Radiculopathy, lower extremities The 10 percent ratings in effect for radiculopathy, left and right lower extremities, associated with his lumbar spine disability are in effect from May 13, 2019. The Veteran must be afforded an examination to assess the current severity of his radiculopathy, and to obtain a retrospective opinion as to whether radiculopathy was shown prior to May 13, 2019. See 12/16/2016 CAPRI at 16-21. The matters are REMANDED for the following actions: 1. Associate updated VA treatment records for the period from September 5, 2019. 2. Request that a qualified examiner with appropriate expertise review the claims folder and respond to the following: a) Is a right hip disability at least as likely as not caused by the Veteran's service-connected right knee disability, to include as a result of falls and giving way? b) If not, has a right hip disability at least as likely as not been aggravated (made worse) by his service-connected right knee disability? If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. The examiner is advised that the Veteran is competent to report his symptoms and history, and that his reports must be considered in formulating the requested opinions. In formulating the opinion, the examiner must provide an appropriate rationale, to include consideration and discussion of the service treatment records, post-service examination reports and treatment records, and lay assertions of the Veteran. If any requested opinion cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. An examination should be scheduled if deemed necessary by the examiner. 3. Schedule the Veteran for an orthopedic examination with an examiner with appropriate expertise to assess the severity of his right knee disability. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the right knee should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should perform stability testing, report whether there is instability or subluxation, and express an opinion as to the severity of such instability or subluxation. The examiner should comment on whether the Veteran has a prescription from a medical provider for a brace, cane, or walker due to recurrent instability. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. The examiner is to provide a statement concerning how the right knee disability affects his functioning and activities. The examiner is asked to describe the types of limitations he would experience as a result of his right knee disability. The examiner must provide a comprehensive rationale for the opinions. 4. Schedule the Veteran for an orthopedic examination with an examiner with appropriate expertise to assess the severity of his lumbar spine disability. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the spine should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or during flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner should also describe all neurologic manifestations, to include, but not limited to bowel or bladder impairment. The examiner is to provide a statement concerning how the lumbar spine disability affects functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations he would experience as a result of his lumbar spine disability. The examiner must provide a comprehensive rationale for the opinions. 5. Schedule the Veteran for an examination to assess the nature and severity of his right and left lower extremity radiculopathy. It is imperative that the virtual claims file be made available to the examiner in connection with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should identify any neurological findings in the lower extremities related to the service-connected lumbar spine disability, and fully describe the extent and severity of those symptoms. The examiner should 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 the nerve (that is, whether it is mild, moderate, moderately severe, or severe in nature). The examiner should also identify any muscular atrophy. The examiner is to provide a statement concerning how the radiculopathy, right and left lower extremity, affects his functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations he would experience as a result of his radiculopathy. For the period prior to May 13, 2019, the examiner should provide a retrospective opinion regarding whether there were any neurological findings in the right and left lower extremities associated with the lumbar spine disability. The examiner should retrospectively 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 the nerve (that is, whether it is mild, moderate, moderately severe, or severe in nature). The examiner should also identify any muscular atrophy. Consideration should be given to the April 2016 VA treatment record which reflects a finding of low back pain which radiates to both lower extremities. See 12/16/2016 CAPRI at 16-21. The examiner must provide a comprehensive rationale for the opinions. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.