Citation Nr: 21041122 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-36 129 DATE: July 8, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia with degenerative joint disease is remanded. Entitlement to an evaluation in excess of 10 percent for right knee chondromalacia with degenerative joint disease is remanded. Entitlement to a compensable evaluation before and after July 27, 2020, for limitation of extension of the left knee is remanded. Entitlement to a compensable evaluation before and after July 27, 2020, for limitation of extension of the right knee is remanded. Entitlement to an evaluation in excess of 20 percent prior to April 27, 2021, and in excess of 10 percent thereafter, for left lower extremity radiculopathy is remanded. Entitlement to an evaluation in excess of 20 percent prior to April 27, 2021, and in excess of 10 percent thereafter, for right lower extremity radiculopathy is remanded. Entitlement to a compensable evaluation before April 27, 2021, and in excess of 10 percent thereafter, for radiculopathy of the left lower extremity involving the femoral nerve is remanded. Entitlement to a compensable evaluation before April 27, 2021, and in excess of 10 percent thereafter, for radiculopathy of the right lower extremity involving the femoral nerve is remanded. Entitlement to an evaluation in excess of 20 percent prior to April 27, 2021, and in excess of 40 percent thereafter, for degenerative joint disease of the thoracolumbar spine with intervertebral disc syndrome is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1973 to November 1976. The Board most recently remanded this matter in December 2020. There has still not been substantial compliance with the remand directives. Another remand is needed before the Board can adjudicate the claims on appeal. Stegall v. West, 11 Vet. App. 268 (1998). After the most recent remand, the Agency of Original Jurisdiction (AOJ) granted service connection and assigned separate ratings for right and left lower extremity radiculopathy involving the femoral nerve. See April 2021 rating decision. As those ratings are manifestations of the service-connected disabilities on appeal are included in the appeal, for the entire appeal period. In April 2021, the Veteran was last provided VA examinations to evaluate the severity of both his bilateral knee and thoracolumbar spine disabilities. However just as with the July 2020 VA examination reports the April 2021 examination reports do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26 (2017), in terms of assessing the extent of any additional functional loss suffered during flare-ups. In both reports, the examiner simply stated that the Veteran denied experiencing flare-ups of his respective disabilities without considering or commenting upon the medical evidence in the record showing the Veteran experienced flare-ups. Information on the duration and functional loss during flare-ups of his respective disabilities is particularly important in this case as during his November 2019 VA examinations the Veteran was on a scooter and claimed he could not stand long enough to do range of motion testing. Also, no explanation was provided for why Correia-compliant range-of-motion testing could not be performed. Correia v. McDonald, 28 Vet. App. 158 (2016). Remand is needed for new VA examinations with more thorough findings in compliance with Sharp and Correia. The Veteran's claims for TDIU and bilateral lower extremity radiculopathy are intertwined with the issues currently on appeal. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of these claims must be deferred. The matters are REMANDED for the following action: 1. Schedule the Veteran for examinations (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician preferably an orthopedic surgeon to determine the current severity of his service-connected thoracolumbar spine, radiculopathy of the bilateral lower extremities, and bilateral knee disabilities. The examiner must test and provide range of motion findings for the Veteran's respective disabilities on active motion, passive motion, and also on weight-bearing and with non-weightbearing. If range-of-motion findings in any of these positions cannot be obtained and documented in an examination report, the examiner must explain why this is so. The examiner must address the severity of the Veteran's right lower extremity and left lower extremity radiculopathy in terms of whether any incomplete paralysis of the sciatic or femoral nerves is mild, moderate, moderately severe or severe, with marked muscular atrophy. The examiner must also attempt to elicit information from the Veteran regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. In this regard, the examiner is asked to specifically address with the Veteran and comment in the examination report on medical evidence in the record suggestive of flare-ups of the Veteran's respective disabilities. An opinion regarding flare-ups should be based on information available in the claims file as to frequency, duration, characteristics, severity or functional loss, to include lay statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Please review the examination report to ensure that it actually complies with the remand directives stated above. Specifically, if range-of-motion measurements are not provided by the examiner in compliance with Correia or if commentary on the evidence of flare-ups is not provided in compliance with Sharp, the examination must be returned to obtain complete medical findings. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including all rating periods for the related radiculopathies and the TDIU claim. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.