Citation Nr: 22013115 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-26 327 DATE: March 8, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent for spondylolysis of the thoracolumbar spine is remanded. Entitlement to an initial rating in excess of 10 for radiculopathy of the left lower extremity is remanded. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1977 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection for spondylosis of the thoracolumbar spine and associated radiculopathy of the left lower extremity; the rating decision assigned a 10 percent disability for each disability. The rating decision also denied service connection for radiculopathy of the right lower extremity. A Board hearing was held in November 2021. A transcript is of record. 1. Entitlement to an initial rating in excess of 10 percent for spondylolysis of the thoracolumbar spine is remanded. The Veteran was afforded VA examinations in January 2016 and May 2017. During the January 2016 examination, the Veteran endorsed flare-ups that the examiner opined caused additional functional impairment. See January 2016 VA examination report. However, the May 2017 VA examination report did not discuss the presence of flare-ups at all. See May 2017 VA examination report. Indeed, the Veteran has stated that the flare-ups are still present and impair him greatly. See Board Hearing Tr. at 3. In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so." 29 Vet. App. 26, 35 (2019). As such, the May 2017 VA examinations is inadequate for rating purposes. Id. The Veteran has also explained that since his January 2016 VA examination report, his disability has worsened. See Board Hearing Tr. at 2. The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400 (1997). The record does not contain an adequate VA examination that assesses the current severity of the Veteran's disability since January 2016. As such, remand is warranted for a new, contemporaneous examination. 2. Entitlement to an initial rating in excess of 10 for radiculopathy of the left lower extremity is remanded. Remand for the Veteran's thoracolumbar spine disability will include an assessment of any associated neurological impairments. The examination could reasonably impact the issues related to an increased rating for radiculopathy of the left lower extremity. Thus, this issue is inextricably intertwined with the remand for an increased rating for the thoracolumbar spine disability. 3. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. The Veteran has endorsed right lower extremity pain that he believes is associated with his thoracolumbar spine. See Board Hearing Tr. at 6-7; see also January 1978 VA examination report. However, neither examination has included a discussion of the Veteran's right leg extremity pain and its relation to the Veteran's service-connected thoracolumbar disability. Remand is warranted for an examiner to opine as to the right lower extremity pain and whether it is associated with his thoracolumbar disability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his thoracolumbar spine disability and radiculopathy that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, schedule the Veteran for appropriate examinations to determine the current nature and severity of his thoracolumbar spine disability and any associated neurological impairment. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in 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 describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should note whether there are any related neurological manifestations and, if so, discuss their nature, severity, frequency, and related impairment of function. The examiner should specifically discuss the Veteran's endorsed right lower extremity pain that has continued to the present. See January 1978 VA examination report. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.