Citation Nr: 21042014 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 13-34 256A DATE: July 11, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for lumbar spondylosis with degenerative disc disease is remanded. Entitlement to a separate rating in excess of 10 percent for radiculopathy of the left lower extremity from November 15, 2018 is remanded. Entitlement to a separate rating in excess of 10 percent for radiculopathy of the left lower extremity from November 15, 2018 is remanded. Entitlement to an initial rating in excess of 10 percent for left knee chondromalacia manifesting in limitation of flexion is remanded. Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia manifesting in limitation of flexion is remanded. Entitlement to a separate initial rating in excess of 10 percent for a disability manifesting in limitation of extension of the left knee is remanded. Entitlement to a separate initial rating in excess of 10 percent for a disability manifesting in limited extension of the right knee is remanded. Entitlement to an increased rating in excess of 20 percent for right shoulder acromioclavicular arthrosis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1998 to September 2003, from September 2007 to September 2011, and from July 2013 to April 2015. This case comes on appeal of a June 2012 rating decision. This appeal was previously before the Board on multiple occasions, most recently in October 2019. At that time, the Board denied the issues listed below. The Board also denied entitlement to a rating in excess of 30 percent for gastroesophageal reflux disease (GERD) and a compensable rating for erectile dysfunction with decreased libido. The Board granted entitlement to a rating of 20 percent for lumbar spondylosis with degenerative disc disease prior to April 30, 2015, a rating of 10 percent for left knee limitation of flexion prior to March 9, 2017, a rating of 10 percent for right knee limitation of flexion prior to March 9, 2017, a separate rating of 10 percent for left knee limitation of extension, a separate rating of 10 percent for right knee limitation of extension, a rating of 30 percent for GERD prior to March 9, 2017, a separate rating of 10 percent for left lower extremity radiculopathy from November 15, 2018, and a separate rating of 10 percent for right lower extremity radiculopathy from November 15, 2018. At the same time, the Board remanded the issue of entitlement to a separate rating for a neurological bladder condition secondary to lumbar spondylosis. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court approved a joint motion to remand (JMR) agreed upon by the Veteran and the Secretary. In the JMR, the parties agreed that it was necessary to vacate and remand the issues addressed in this decision. The specific agreements of the JMR for each issue will be addressed in more detail below. At the same time, the Veteran agreed to abandon the issues of an increased rating for GERD and increased rating for erectile dysfunction. The parties also agreed not to disturb the favorable findings of the October 2019 decision listed above. In the JMR, the Court also noted that it had no jurisdiction over the issue of entitlement to a separate rating for a neurological bladder condition secondary to lumbar spondylosis, as the Board had remanded that issue for further development. The Board notes that the agency of original jurisdiction (AOJ) issued a February 2021 rating decision granting separate service connection for a bladder disorder; therefore, that issue is considered granted in full. 1. Entitlement to a rating in excess of 20 percent for lumbar spondylosis with degenerative disc disease By way of background, the Veteran filed a claim of entitlement to service connection for a low back condition in May 2011. In the June 2012 rating decision on appeal, the AOJ granted entitlement to service connection at a rating of 10 percent. The Veteran filed a timely notice of disagreement to appeal the evaluation of the disability. The appeal came before the Board in April 2018. At that time, the Board remanded the claim for additional development. Subsequent to the Board's remand, the AOJ issued a June 2019 rating decision in which it granted entitlement to a 20 percent rating for lumbar spondylosis with degenerative disc disease, effective April 30, 2015. The AOJ simultaneously issued a supplemental statement of the case denying entitlement to a rating in excess of 10 percent prior to April 30, 2015, and in excess of 20 percent from April 30, 2015 forward. The AOJ then returned the case to the Board. In the October 2019 decision discussed above, the Board granted entitlement to a rating of 20 percent prior to April 30, 2015, but denied entitlement to a rating of 20 percent from April 30, 2015. In other words, the Board granted entitlement to an initial rating of 20 percent, but no higher. The Veteran then appealed this decision to the Court, seeking a rating in excess of 20 percent throughout the period on appeal. In the November 2020 JMR, the parties agreed that the Board had erred by providing inadequate reasons and bases and relying on inadequate examinations, contrary to VA's duty to assist. First, regarding a November 2018 VA examination, the parties noted that the examiner had failed to explain whether there was objective evidence of pain on range of motion testing and, if so, where that pain began. The examiner also failed to address the degree of additional range of motion loss due to pain during flare-ups or after repeated use over time, as well as additional loss of range of motion due to pain on both active and passive motion and in weight-bearing and non-weight-bearing testing. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158, 169 (2016; Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Additionally, the parties noted that the Veteran underwent examinations in March 2017 and October 2014 that were inadequate for rating purposes. Specifically, the March 2017 examiner recorded pain on motion during initial range of motion testing and reported that such pain caused functional loss, but failed to describe such functional loss in terms of range of motion. The March 2017 examiner also failed to explain why range of motion estimates on repeated use over time could not be provided, aside from reporting that the Veteran "avoids these activities." Similarly, the October 2014 examiner opined that she was unable to provide an estimate of additional range of motion loss because the degree of loss depended on the severity of pain and it would be mere speculation to estimate the degree of pain. In Sharp the Court determined that direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion and that VA guidelines anticipate that examiners will offer flare-up opinions based on estimates derived from relevant sources, including the lay statements of Veterans. If an examiner cannot provide an opinion without resorting to speculation, he or she must make it apparent that "the inability to provide an opinion without resorting to speculation, 'reflects the limitation of knowledge in the medical community at large' and not a limitation whether based on lack of expertise, insufficient information, or unprocured testing of the individual examiner." Sharp, 29 Vet. App. at 33 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Based on the inadequacies of these examinations, in the JMR, the parties agreed that the Board must provide an adequate statement as to whether the evidence of record is sufficient to fully inform the Board as to the nature and extent of the Veteran's lumbar spine disability, to include whether a retrospective medical opinion is appropriate. Notably, after the Court approved the JMR, but before this claim was returned to the Board, the Veteran underwent a new VA back conditions examination in February 2021 as part of the pursuit of a separate claim. Unfortunately, the Board finds that this examination is not fully adequate for ratings purposes either. Although the examiner did address additional functional loss due to flare-ups and repeated use over time in terms of degrees of range of motion, the examiner did not address the Veteran's functional loss due to pain on both active and passive motion. Specifically, the examiner noted pain on active motion and also noted that passive motion testing could not be performed due to pain and/or risk of injury to the Veteran. This would appear to indicate that the Veteran's back condition may manifest in greater functional loss than that documented by the ranges of motion for which the Veteran is capable, but the examiner's report of findings renders this unclear. Accordingly, the Board finds that remand is necessary to afford the Veteran a new back conditions examination. In that examination, the examiner should address the full extent of the Veteran's limitation of motion, to include estimates of additional functional loss due to flare-ups and repeated use over time. The examiner should also address the additional functional loss due to pain on both active and passive motion, with a clear explanation of where the degree of motion at which there is objective evidence of pain. If any testing cannot be performed due to pain or due to the risk of injury to the Veteran, the examiner should provide a clear explanation as to whether this indicates additional functional loss and should express that functional loss in terms of range of motion. The examiner should also review the Veteran's entire claims file, to specifically include the November 2018, March 2017, and October 2014 examinations. Based on the information provided at those examinations, as well as any other information obtained from the Veteran, the examiner should offer a retrospective opinion, if possible, regarding additional functional loss due to flare-ups, repeated use over time, and pain on both active and passive motion and in weight-bearing and non-weight-bearing testing. If the examiner cannot provide such an opinion, he or she should explain why that is the case. In doing so, the examiner should note the Court's ruling in Sharp v. Shulkin, 29 Vet. App. 26 (2017). 2. Entitlement to a separate rating in excess of 10 percent for radiculopathy of the left lower extremity from November 15, 2018 is remanded. 3. Entitlement to a separate rating in excess of 10 percent for radiculopathy of the right lower extremity from November 15, 2018 is remanded. By way of background, in its October 2019 decision, the Board granted entitlement to separate ratings of 10 percent for left and right lower extremity radiculopathy in the course of evaluating the severity of the Veteran's lumbar spine disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. In the November 2020 JMR, the parties agreed that the Board had erred in providing sufficient reasons and bases for its decision. Specifically, the parties noted that in the November 2018 VA examination upon which the Board based its evaluation, the examiner reported that the Veteran experienced moderate constant pain and severe paresthesias and/or dysesthesias, yet the examiner reported the Veteran's radiculopathy symptoms as "mild." The Board's failure to reconcile these findings amounted to error. The Board acknowledges that since the November 2020 JMR, the Veteran has undergone both VA back conditions and peripheral nerves examinations. However, in light of the instruction above to afford the Veteran a new VA back examination, the Board finds that remand is also necessary for the issues of left and right lower extremity radiculopathy, as examination of the Veteran's back condition may provide relevant information regarding the severity of radiculopathy. 4. Entitlement to a rating in excess of 10 percent for left knee chondromalacia manifesting in limitation of flexion is remanded. 5. Entitlement to a rating in excess of 10 percent for right knee chondromalacia manifesting in limitation of flexion is remanded. 6. Entitlement to a separate rating in excess of 10 percent for a disability manifesting in limitation of extension of the left knee is remanded. 7. Entitlement to a separate rating in excess of 10 percent for a disability manifesting in limited extension of the right knee is remanded. By way of background, the Veteran filed a claim of entitlement to service connection for bilateral knee disabilities in May 2011. In the June 2012 rating decision on appeal, the AOJ granted entitlement to service connection for left and right knee chondromalacia, assigning a noncompensable rating for each knee. The Veteran filed a timely notice of disagreement to appeal the ratings and the appeal ultimately came before the Board in April 2018. The Board remanded the claims for additional development. Subsequent to that remand, in June 2019, the AOJ issued a rating decision granting increased ratings of 10 percent for each knee, effective March 9, 2017, the date of a VA examination. The AOJ simultaneously issued a supplemental statement of the case denying entitlement to a compensable rating for each knee prior to March 9, 2017, and to a rating in excess of 10 percent for each knee from March 9, 2017 forward. In its October 2019 decision, the Board granted entitlement to ratings of 10 percent for limitation of flexion of the left and right knees prior to March 9, 2017. The Board then denied entitlement to ratings in excess of 10 percent from March 9, 2017 forward. In other words, the Board granted entitlement to initial ratings of 10 percent, but no higher, for limitation of flexion of the left and right knees. At the same time, the Board also granted entitlement to separate initial ratings of 10 percent for limitation of extension of the left and right knees. The Veteran appealed this decision to the Court, asserting his contention that he was entitled to initial ratings in excess of 10 percent for both flexion and extension of both the left and right knees. In the November 2020 JMR, the parties agreed that the Board had erred in relying on November 2018, March 2017, and October 2014 VA examinations. Specifically, the parties noted that in the November 2018 examination, the examiner recorded pain on motion during initial range of motion testing and reported that pain caused functional loss. However, the examiner failed to describe where the pain began in terms of range of motion. The examiner also failed to address whether there was additional limitation of function with pain on active and passive motion, and on weight-bearing and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016; Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Similarly, in the March 2017 and October 2014 examinations, the examiner failed to address in terms of range of motion additional functional loss due to flare-ups in addition to the Correia factors discussed with the November 2018 examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The parties acknowledged that these examinations were rendered inadequate and agreed that the Board should therefore consider whether a retrospective opinion was needed. The parties also noted that the Board failed to consider lay evidence of instability in determining whether additional rating was warranted under Diagnostic Code 5257. Accordingly, the Board finds that remand is necessary to afford the Veteran a new knee and lower leg conditions examination. In that examination, the examiner should address the full extent of the Veteran's limitation of motion, to include estimates of additional functional loss due to flare-ups and repeated use over time. The examiner should also address the additional functional loss due to pain on both active and passive motion, with a clear explanation of where the degree of motion at which there is objective evidence of pain. If any testing cannot be performed due to pain or due to the risk of injury to the Veteran, the examiner should provide a clear explanation as to whether this indicates additional functional loss and should express that functional loss in terms of range of motion. The examiner should also review the Veteran's entire claims file, to specifically include the November 2018, March 2017, and October 2014 examinations. Based on the information provided at those examinations, as well as any other information obtained from the Veteran, the examiner should offer a retrospective opinion, if possible, regarding additional functional loss due to flare-ups, repeated use over time, and pain on both active and passive motion and in weight-bearing and non-weight-bearing testing. If the examiner cannot provide such an opinion, he or she should explain why that is the case. In doing so, the examiner should note the Court's ruling in Sharp v. Shulkin, 29 Vet. App. 26 (2017). 8. Entitlement to a rating in excess of 20 percent for right shoulder acromioclavicular arthrosis is remanded. By way of background, the Veteran first filed a claim of entitlement to an increased rating for his service-connected right shoulder disability in May 2011. At that time, the disability was rated at 10 percent, although the benefit award had been discontinued while the Veteran returned to active duty. In the June 2012 rating decision on appeal, the AOJ reinstated and confirmed the 10 percent right shoulder rating. The Veteran filed a timely notice of disagreement, appealing the evaluation of the disability. The appeal came before the Board in April 2018, at which time the Board remanded the claim for further development. Subsequent to that remand, in a June 2019 rating decision, the AOJ granted entitlement to a rating of 20 percent, effective the initial date of service connection, with compensation terminated during the periods of the Veteran's return to active duty. The AOJ simultaneously issued a supplemental statement of the case denying entitlement to a rating in excess of 20 percent. The AOJ then returned the case to the Board. In its October 2019 decision, the Board denied entitlement to a rating in excess of 20 percent. In the November 2020 JMR, the parties agreed that the Board did not provide adequate reasons and bases to explain its reliance on a November 2018 VA examination. The parties also agreed that the Board erred in relying on March 2017 and October 2014 VA examinations that were not adequate. Specifically, at the November 2018 examination, the examiner recorded pain on motion during flare-ups and repeated use testing but failed to describe where that pain began in terms of additional loss of range of motion due to pain. The examiner also failed to record requisite measurements of related to active and passive motion and in weight-bearing and non-weight-bearing. In the March 2017 and October 2014 examinations, the examiners did not address additional functional loss due to flare-ups in terms of range of motion, nor did the examiners provide adequate explanation for why they could not provide these measurements. The parties acknowledged that these examinations were rendered inadequate and agreed that the Board should therefore consider whether a retrospective opinion was needed. Accordingly, the Board finds that remand is necessary to afford the Veteran a new shoulder and arm conditions examination. In that examination, the examiner should address the full extent of the Veteran's limitation of motion, to include estimates of additional functional loss due to flare-ups and repeated use over time. The examiner should also address the additional functional loss due to pain on both active and passive motion, with a clear explanation of where the degree of motion at which there is objective evidence of pain. If any testing cannot be performed due to pain or due to the risk of injury to the Veteran, the examiner should provide a clear explanation as to whether this indicates additional functional loss and should express that functional loss in terms of range of motion. The examiner should also review the Veteran's entire claims file, to specifically include the November 2018, March 2017, and October 2014 examinations. Based on the information provided at those examinations, as well as any other information obtained from the Veteran, the examiner should offer a retrospective opinion, if possible, regarding additional functional loss due to flare-ups, repeated use over time, and pain on both active and passive motion and in weight-bearing and non-weight-bearing testing. If the examiner cannot provide such an opinion, he or she should explain why that is the case. In doing so, the examiner should note the Court's ruling in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his 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, to specifically include neurological symptoms of the bilateral lower extremities. (A) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion; (B) The examination must include testing results of joint pain on both active and passive motion, and in weight-bearing and non-weight bearing. The examiner should assess and report where pain begins on the Veteran's initial range of motion and upon repetitive testing. If such testing cannot be completed, an explanation should be provided as to why this is so. (C) The examiner must also estimate any functional loss in terms of additional degrees of limited motion of the lumbar spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide this estimate without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Finally, the examiner should review prior medical testing and provide an opinion as to the range of motion throughout the appeal period (since May 2011) of the lumbar spine in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in non-weight-bearing, (5) and with additional loss due to flare-ups or repeated use over time. A rationale for any opinions expressed should be set forth. If the examiner cannot provide this estimate without resorting to speculation, he or she should state whether all procurable medical evidence had been considered and whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 2. Schedule the Veteran for an examination of the current severity of his bilateral knee 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. (A) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion; (B) The examination must include testing results of joint pain on both active and passive motion, and in weight-bearing and non-weight bearing. The examiner should assess and report where pain begins on the Veteran's initial range of motion and upon repetitive testing. If such testing cannot be completed, an explanation should be provided as to why this is so. (C) The examiner must also estimate any functional loss in terms of additional degrees of limited motion of the left and right knee experienced during flare-ups and repetitive use over time. If the examiner cannot provide this estimate without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Finally, the examiner should review prior medical testing and provide an opinion as to the range of motion throughout the appeal period (since May 2011) of the left and right knee in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in non-weight-bearing, (5) and with additional loss due to flare-ups or repeated use over time. A rationale for any opinions expressed should be set forth. If the examiner cannot provide this estimate without resorting to speculation, he or she should state whether all procurable medical evidence had been considered and whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 3. Schedule the Veteran for an examination of the current severity of his right shoulder 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. (A) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion; (B) The examination must include testing results of joint pain on both active and passive motion, and in weight-bearing and non-weight bearing. The examiner should assess where pain begins on the Veteran's initial range of motion and upon repetitive testing. If such testing cannot be completed, an explanation should be provided as to why this is so. (C) The examiner must also estimate any functional loss in terms of additional degrees of limited motion of the right shoulder experienced during flare-ups and repetitive use over time. If the examiner cannot provide this estimate without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Finally, the examiner should review prior medical testing and provide an opinion as to the range of motion throughout the appeal period (since May 2011) of the right shoulder in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in non-weight-bearing, (5) and with additional loss due to flare-ups or repeated use over time. A rationale for any opinions expressed should be set forth. If the examiner cannot provide this estimate without resorting to speculation, he or she should state whether all procurable medical evidence had been considered and whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 4. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.