Citation Nr: 21041480 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-06 182A DATE: July 9, 2021 REMANDED Entitlement to a rating in excess of 10 percent for lumbosacral spine degenerative joint and disc disease with coccygeal region strain prior to September 16, 2014, is remanded. Entitlement to a rating in excess of 20 percent for lumbosacral spine degenerative joint and disc disease with coccygeal region strain beginning September 16, 2014, is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity femoral nerve radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for cervical disk disease prior to September 16, 2014, is remanded. Entitlement to a rating in excess of 20 percent for cervical disk disease beginning September 16, 2014, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to June 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in April 2019, on which occasions the claims were remanded. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for lumbosacral spine with degenerative joint and disc disease with coccygeal region strain prior to September 16, 2014, is remanded. 2. Entitlement to a rating in excess of 20 percent for lumbosacral spine with degenerative joint and disc disease with coccygeal region strain beginning September 16, 2014, is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Unfortunately, there has not been substantial compliance with the Board's April 2019 remand directives. In the April 2019 Board decision, the Veteran's claims were remanded because the Veteran's most recent lumbar spine examination, which took place in September 2014, did not provide range of motion testing in active and passive motion in both weight-bearing and non-weight-bearing circumstances, or an estimation of range of motion during flare-ups. Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board additionally requested a retroactive estimation of the Veteran's range of motion loss during flare-ups at the time of the February 2011 and September 2014 VA examinations. The Veteran was afforded a new VA lumbar spine examination in November 2019. The VA examiner tested the Veteran's initial range of motion and range of motion after observed repetitive use. However, passive range of motion testing was not conducted, as the examiner indicated that the test could not be performed or was not medically appropriate. No justification for this conclusion was provided. Moreover, the examiner concluded that an estimation of range of motion loss after repeated use over time or during a flare-up was not warranted, as the Veteran would not experience a reduction of her range of motion, "only increased symptoms" of pain and fatigability. (11/19/2019, C&P Exam, p. 5, 12). Similarly, the examiner indicated that no retroactive estimation of range of motion during the February 2011 and September 2014 VA examinations was warranted as the Veteran would only experience increased symptoms. (11/19/2019, C&P Exam, p. 4). The Board finds that in failing to provide passive range of motion testing and an estimation of range of motion loss after repeated use over time and during flare-ups, the November 2019 examiner failed to substantially comply with the Board's April 2019 remand directives. In this regard, the November 2019 examiner's findings regarding the feasibility of passive range of motion testing is inconsistent with other medical evidence of record. Specifically, passive range of motion testing was conducted while the Veteran was undergoing physical therapy. (10/24/2019, Medical Treatment Record, p. 8). Regarding the examiner's conclusion that the Veteran would not experience a reduction of range of motion during repeated use over time or during a flare-up, only an increase in symptoms, the Board finds that this conclusion is inadequate. When evaluating musculoskeletal system disabilities, the examiner must consider a veteran's ability to perform "the normal working movements of the body with normal excursion, strength, speed, coordination and endurance." 38 C.F.R. § 4.40. It is essential that the examination adequately portray the functional loss of a disability, including as due to pain. Id. Indeed, a joint which becomes painful on use must be regarded as seriously disabled. Id. In accordance with 38 C.F.R. § 4.40, the Board must consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In the present case, the November 2019 examiner indicated that the Veteran's actual range of motion would not be decreased during repeated use over time or during a flare-up. However, the examiner did not opine on whether pain and fatigability would cause functional loss. As such, the Board finds that the examination is inadequate. Thus, the claims must be remanded for further medical development. 3. Entitlement to an initial rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy is remanded. 4. Entitlement to an initial rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy is remanded. 5. Entitlement to a rating in excess of 10 percent for left lower extremity femoral nerve radiculopathy is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As the requested medical development on the remanded issue of entitlement to increased ratings for a lumbar spine disability is likely to produce new evidence concerning the severity of the Veteran's lower extremity radiculopathy, the Board finds that the issues are inextricably intertwined. Therefore, a remand of the claims for increased ratings for lower extremity radiculopathy is required. 6. Entitlement to a rating in excess of 10 percent for cervical disk disease prior to September 16, 2014, is remanded. 7. Entitlement to a rating in excess of 20 percent for cervical disk disease beginning September 16, 2014, is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Unfortunately, there has not been substantial compliance with the Board's April 2019 remand directives. As noted in the preceding section, the Veteran's claims were remanded in an April 2019 Board decision for a new cervical spine examination that is consistent with the holdings in Correia and Sharp. Additionally, a retroactive estimation of the Veteran's range of motion loss during flare-ups at the time of the February 2011 and September 2014 VA examinations was requested. The Veteran was afforded a new VA cervical spine examination in October 2020. The examiner tested the Veteran's initial range of motion, range of motion after observed repetitive use, and passive range of motion. The examiner indicated that the Veteran experiences additional functional ability with repeated use over time and during flare-ups. In describing her current symptoms, the Veteran indicated that she has mild upper arm and finger tingling, trouble with hand and finger dexterity, and pain that radiates down the left shoulder and arm almost constantly. Despite these complaints, the examiner indicated that the Veteran does not have signs or symptoms of radiculopathy. (10/20/2020, C&P Exam, p. 3-6, 8). The examiner did not provide a retroactive estimation of range of motion loss during flare-ups at the time of the February 2011 and September 2014 VA examinations as requested. The Board finds that the October 2020 examination is inadequate as it is internally inconsistent. In this regard, the examiner noted the Veteran's complaints of radiculopathy symptoms, but indicated that there were no signs or symptoms of radiculopathy. While the issue of upper extremity radiculopathy was not remanded by the Board in the April 2019 decision, Note 1 to the General Rating Formula for Diseases and Injuries of the Spine directs VA to evaluate any associated neurologic abnormalities separately under an appropriate diagnostic code when evaluating a spine disability. See 38C.F.R. §4.71A. Therefore, when considering an increased rating for a spine disability, all associated neurologic abnormalities, including radiculopathy, are at issue as well. In failing to evaluate the Veteran's complaints of upper extremity radiculopathy, the examiner failed to report all signs and symptoms necessary to evaluate the Veteran's disability under the rating criteria. Further, the Board finds that in failing to provide a retroactive estimation of range of motion loss during flare-ups at the time of the February 2011 and September 2014 VA examinations, the examiner failed to substantially comply with the Board's April 2019 remand directives. As such, the Board finds that the examination is inadequate. Thus, the claims must be remanded for further medical development. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In this regard, a decision on the remanded issues of entitlement to increased ratings for a lumbar spine disability, a cervical spine disability, and radiculopathy could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from December 2019 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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. Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement 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. If it is not possible to provide a specific measurement 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. Then, to the extent possible, the clinician MUST review the lumbar spine range of motion studies from the February 2011 and September 2014 VA examinations and estimate the lumbar spine motion loss during flare-ups and repetitive use over time. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected cervical spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement 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. If it is not possible to provide a specific measurement 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. Then, to the extent possible, the clinician MUST review the cervical spine range of motion studies from the February 2011 and September 2014 VA examinations and estimate the cervical spine motion loss during flare-ups and repetitive use over time. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, Associate 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.