Citation Nr: 22015685 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 13-34 262A DATE: March 18, 2022 REMANDED Entitlement to an initial compensable rating for hemorrhoids is remanded. Entitlement to an initial rating greater than 10 percent for a right knee disability is remanded. Entitlement to an initial rating greater than 10 percent for a lumbosacral spine disability is remanded. Entitlement to an initial rating greater than 10 percent for a cervical spine disability is remanded. Entitlement to a compensable initial rating, for the period prior to March 25, 2015, and a rating in excess of 10 percent thereafter, for right lower extremity femoral radiculopathy, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1984 to December 2010, including in combat in Afghanistan. The issues were most recently before the Board of Veterans' Appeals (Board) in October 2020 when they were denied. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veteran Claims (Court). In a November 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the Board decision with regard to the issues listed above. In a June 2020 rating decision, the Regional Office (RO) granted entitlement to a separate evaluation of 10 percent, effective March 25, 2015, for right lower extremity femoral radiculopathy, as related to the Veteran's service-connected thoracolumbar spine strain status post lumbar fusion. As the right lower extremity radiculopathy is a manifestation of the Veteran's service-connected back disability, his appeal of that claim encompassed ratings for all manifestations of the condition. Thus, the evaluation of the Veteran's right lower extremity femoral radiculopathy is on appeal, including whether a compensable rating is warranted prior to March 25, 2015. See AB v Brown, 6 Vet. App. 35 (1993); 38 C.F.R. § 4 71a, Note (1). 1. Entitlement to an initial compensable rating for hemorrhoids is remanded. The parties to the JMPR agreed that the examiner in September 2019 did not address the Veteran's medical history during the period or provide details as to the nature of his disability. Therefore, the Board finds the VA examination in September 2019 to be inadequate for rating purposes and the claim is remanded for the Veteran to be afforded an adequate VA medical examination. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 2. Entitlement to an initial rating greater than 10 percent for a right knee disability is remanded. 3. Entitlement to an initial rating greater than 10 percent for a lumbosacral spine disability is remanded. 4. Entitlement to an initial rating greater than 10 percent for a cervical spine disability is remanded. The parties to the JMPR agreed that the examiners in March 2011 and September 2019 did not adequately address the Veteran's reported flare-ups of the conditions, to include whether there was additional range of motion loss during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The parties further agreed that the March 2011 and September 2019 examinations did not provide sufficient information as to whether testing was conducted for pain on active and passive motion, in weight-bearing and non-weight-bearing positions, to include range of motion results. See Correia v. McDonald, 28 Vet. App. 158 (2016). Finally, it was agreed by the parties to the JMPR that an adequate VA examination must be provided to correct the deficiencies in the examinations. Therefore, the Board finds that the claims must be remanded for adequate examinations. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). 5. Entitlement to a compensable initial rating, for the period prior to March 25, 2015, and a rating in excess of 10 percent thereafter, for right lower extremity femoral radiculopathy, is remanded. The claim for a higher rating for the right lower extremity radiculopathy, and any other neurological disability associated with the Veteran's lumbar and cervical spine disabilities, as identified by the partied to the JMPR, must be remanded as intertwined with the above ordered development regarding the lumbosacral and cervical spine claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). On remand, attempts must be made to obtain and associate with the claims file all VA treatment records regarding the Veteran dated since September 2019. See 38 C.F.R. § 3.159. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from September 2019 to the present. 2. Thereafter, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected hemorrhoid 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 include all manifestations of the Veteran's hemorrhoid disability. 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. The examiner must specifically address all manifestations of the Veteran's service-connected hemorrhoid disability during the period on appeal to include reported symptoms of itching, occasional pain, and bleeding. The examiner must comment on the findings of the prior VA examinations and the treatment records. To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect of the Veteran's hemorrhoid disability on any occupational functioning and activities of daily living. The examiner must provide a rationale for any opinion expressed. 3. Thereafter, schedule the Veteran for VA examinations (or telehealth interviews, reviews of the record, etc., if in-person examinations are not feasible) to include retrospectively, addressing the severity of the Veteran's right knee, lumbar spine, and cervical spine disabilities. The claims folder should be made available to the examiners for review before the examinations. Any appropriate evaluations, studies, and testing deemed necessary by the examiners should be conducted at this time, and included in the examination report. The examiners must provide retrospective opinions, addressing the severity of the Veteran's service-connected right knee, lumbar spine, and cervical spine disabilities, from December 2010, the effective date of service connection, to the present. In doing so, the examiners must provide all findings, to include ranges of motion of in active motion, passive motion, weight-bearing, and non-weight bearing. The examiners should indicate whether there is weakened movement, excess fatigability, incoordination or pain. If the examiners are unable to conduct the required testing or conclude that the required testing is not necessary in this case, this should be clearly explained. The knee examiner should address whether at any time since December 2010 the Veteran's right knee manifested by limitation of motion (flexion/extension), ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula and/or genu recurvatum. The examiner should address the severity of any such manifestations during the applicable period. The spine examiner should address whether at any time since December 2010, the Veteran's lumbar spine and/or cervical spine was manifested by limitation of motion or ankylosis. In answering this, the examiners must specifically discuss the medical evidence regarding the disabilities, not limited solely to the VA examinations performed, and the Veteran's statement. The examiners should, to the extent possible, express an opinion as to whether the Veteran experienced additional limits of functional ability, to include on repeated use or flare-ups due to pain, weakened movement, incoordination or excess fatigability during the time period under review. The examiners should fully describe the severity of such functional limitation, if any, and should indicate whether such functional limitation resulted in additional degrees of limited motion, if possible. The severity of all neurological manifestations of the lumbar and cervical spine disabilities must be identified. The examiners should comment on the Veteran's reports of symptoms, including radiating pain and numbness and weakness and numbness. The examiner should identify if the functional limitation of the Veteran's back disability and associated neurological manifestations combined more nearly approximates ankylosis at any point during the period on appeal. The examiners must provide comprehensive reports including complete rationales for all opinions and conclusions reached. If the examiners determine that a decision cannot be made without resort to mere speculation, then it should be clear in the examiners' remarks as to why such is the case. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.