Citation Nr: 22016807 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 13-05 618 DATE: March 23, 2022 REMANDED Entitlement to a rating in excess of 30 percent for residuals of a left knee replacement from April 8, 2010 to February 11, 2015 is remanded. Entitlement to a rating in excess of 30 percent for residuals of a left knee replacement beginning May 1, 2017 is remanded. Entitlement to a rating in excess of 20 percent for thoracolumbar spine strain with intervertebral disc syndrome (IVDS) is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. REASONS FOR REMAND The Veteran had active service from February 1990 to March 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2010, September 2013, May 2015, and September 2019 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In January 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Travel Board hearing. A transcript of that hearing is associated with the claims file. In a July 2020 decision, the Board, in pertinent part, denied entitlement to higher staged ratings for the service-connected residuals of a left knee replacement for the periods from April 8, 2010 to February 11, 2015; and beginning May 1, 2017. The Board further denied entitlement to a higher rating for the service-connected thoracolumbar spine strain with IVDS, and radiculopathy of the bilateral lower extremities. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2021, the Court granted a November 2021 Joint Motion for Partial Remand (JMPR) and vacated that portion of the Board's decision that denied higher staged ratings for the service-connected residuals of a left knee replacement for the periods from April 8, 2010 to February 11, 2015; and beginning May 1, 2017; and for a higher rating for the service-connected thoracolumbar spine strain with IVDS, and radiculopathy of the bilateral lower extremities. In accordance with the November 2021 JMPR, the Board finds that a remand is warranted for additional medical inquiry into these claims. 1. Entitlement to a Rating in Excess of 30 Percent for Residuals of a Left Knee Replacement from April 8, 2010 to February 11, 2015 is Remanded. 2. Entitlement to a Rating in Excess of 30 Percent for Residuals of a Left Knee Replacement Beginning May 1, 2017 is Remanded. The Veteran's ratings for the service-connected residuals of a left knee replacement have been staged during the period on appeal. From April 8, 2010 to February 11, 2015, the residuals of a left knee replacement was evaluated as 30 percent disabling; from February 12, 2015 to March 22, 2016, the residuals of a left knee replacement was evaluated as 60 percent disabling; from March 23, 2016 to May 1, 2017, the Veteran received a 100 percent evaluation following a March 23, 2016 surgical procedure on his knee; and beginning May 1, 2017, the residuals of a left knee replacement was evaluated as 30 percent disabling. The Veteran seeks higher staged ratings for the service-connected residuals of a left knee replacement for the periods from April 8, 2010 to February 11, 2015; and beginning May 1, 2017. In the November 2021 JMPR, the parties agreed that the Board failed to provide adequate reasons and bases for establishing the difference between "severe" and "intermediate" painful motion or weakness in regard to a rating under Diagnostic Code 5055, during these periods. Additionally, in the November 2021 JMPR, the parties reference to the assigned 30 percent disability rating for the periods from April 8, 2010 to February 11, 2015; and beginning May 1, 2017, were, in part, based on VA examinations conducted in May 2010, January 2013, December 2018, and January 2019. The May 2010 and the January 2013 VA examination reports note the Veteran's report of flare-ups to include once daily, lasting 6 hours, with a pain score of 8/10, which impact range of motion. Moreover, the Veteran missed work for a period of 3 days, and was prescribed oxycodone, for left knee pain. See July 2011 treatment records. Neither report estimated the Veteran's functional loss due to flare-ups. The December 2018 VA examination report documents flare-ups pertaining to the Veteran's right knee. The January 2019 VA examination report found no report of flare-ups, without explanation of why the Veteran's report of pain in the lateral and sub-patellar areas of his left knee that is worsened after prolonged periods of walking and after stair climbing, kneeling, and squatting would not constitute a flare-up. Moreover, even if the Veteran no longer experienced left knee flare-ups as of January 2019, the Veteran did reportedly experience flare-ups before then, as specified in the May 2010 and January 2013 VA examination reports. Instead, the January 2019 VA examiner simply concluded that designating a numerical range of motion without measurement related to such flare-ups was speculative. Accordingly, and in accordance with the November 2021 JMPR, a new medical opinion, and retrospective opinion, that more squarely complies with the requirements of the holdings in Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016), is required to determine: (a) the severity of the service-connected residuals of a left knee replacement for the period from April 8, 2010 to February 11, 2015; and (b) the severity of the service-connected residuals of a left knee replacement beginning May 1, 2017. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that if, a claim cannot be rated based on the available evidence, the Board may need to obtain a retrospective opinion). Moreover, during the course of this appeal, the schedular rating for evaluating knee replacements under Diagnostic Code 5055 was amended effective February 7, 2021. See 85 Fed. Reg. 76, 453 (November 30, 2020). As such, in order to afford the Veteran all due process and avoid prejudice, the RO must consider whether a higher rating is available under the new criteria as of the effective date. 3. Entitlement to a Rating in Excess of 20 Percent for Thoracolumbar Spine Strain with IVDS is Remanded. In regard to the Veteran's claim for a higher rating for IVDS of the thoracolumbar spine for the period on appeal, the parties agreed in the November 2021 JMPR that the Board erred by not ensuring that VA complied with its duty to assist. In this regard, in the November 2021 JMPR, the parties make reference to private chiropractic treatment sought by the Veteran for his back condition from Dr. G., once every two weeks and/or once every month. The Board notes that there is no indication that VA attempted to obtain the private medical records from Dr. G. The Board further notes that the Veteran received private chiropractic treatment from Dr. A. See February 2012 Authorization and Consent to Release Information to VA. In regard to these records, the Board notes that the AOJ attempted to assist the Veteran in retrieving these records. See correspondence dated July 2013 and August 2013. However, following the August 2013 correspondence, which requested an updated authorization, the Veteran did not return the enclosed VA Form 21-4142, Release of Information Form or the VA Form 21-4142a, General Release for Medical Provider Information. Therefore, in accordance with the November 2021 JMPR, the Veteran should be afforded the opportunity to provide the information and releases necessary to obtain any outstanding private treatment records from Dr. G. He should also be afforded another opportunity to obtain any outstanding private treatment records from Dr. A. The Board further notes that the Veteran's representative submitted a June 2021 Appellant's Brief wherein he challenged the adequacy of the June 2016 and January 2019 VA spine examination reports. He asserts the June 2016 VA examiner did not conduct a review of the Veteran's record. He also asserts that both the June 2016 and January 2019 VA examiners indicated the Veteran did not experience flare-ups in his back without an explanation of why the Veteran's report of missing time at work and experiencing stiffening periodically in his back impacting his ability to lift more than 20 pounds, touch his toes, or bend over to don his socks or pick-up items would not constitute a flare-up. Moreover, even if the Veteran no longer experienced back flare-ups as of June 2016 and/or January 2019, the Veteran did reportedly experience flare-ups before then, as specified in the August 2013 VA examination report. Likewise, in accordance with the November 2021 JMPR, a new medical opinion, and retrospective opinion, that complies with the requirements of the holdings in Sharp and Correia, is also required to determine the severity of the service-connected thoracolumbar spine strain with IVDS for the entire period on appeal. See Chotta, 22 Vet. App. at 85. 4. Entitlement to an Initial Rating in Excess of 10 Percent for Radiculopathy of the Right Lower Extremity is Remanded. 5. Entitlement to an Initial Rating in Excess of 10 Percent for Radiculopathy of the Left Lower Extremity is Remanded. The parties further agreed in the November 2021 JMPR that the Board failed to address whether a separate compensable rating for the Veteran's radiculopathy of the bilateral lower extremities was warranted prior to January 8, 2019. In the November 2021 JMPR, the parties make reference to the January 2019 VA examination wherein the Veteran reported plantar tingling for the past 5-6 months, with pain down the left hamstring area for about 20 years; the January 2018 Board hearing wherein the Veteran testified that he experiences numbness and tingling down his left leg; and the earlier June 2016 VA examination wherein the Veteran reported tingling in the lower extremities. Therefore, in accordance with the November 2021 JMPR, remand is necessary in order to obtain a new medical examination and opinion to address the severity of the Veteran's radiculopathy of the right and left lower extremities and to determine whether such manifested prior to January 8, 2019. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private treatment records, to include from Dr. G. and/or Dr. A.; or any VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative, if any, and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b) (2) and 38 C.F.R. § 3.159 (e). 2. After the foregoing development has been completed to the extent possible, schedule the Veteran for a VA knee examination by an appropriate clinician, who has not previously examined the Veteran, if feasible, to determine the severity of his service-connected residuals of a left knee replacement disability. The claims file must be made available to the examiner and all necessary testing should be conducted, to include active left knee motion, passive left knee motion, and note the presence of pain during weightbearing and non-weightbearing. The examiner is to provide a full description of the disability, including determining all residuals, and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to his residuals of a left knee replacement disability and discuss its effect on any occupational functioning and activities of daily living. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination of current and past experiences, state whether the Veteran experiences flare-ups of his service-connected residuals of a left knee replacement disability, and how he characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare-ups, identify the: a. frequency; b. duration; c. precipitating factors; and d. alleviating factors. The examiner must address whether the Veteran's missing work for a period of 3 days and being prescribed oxycodone for left knee pain; as well as the Veteran's report of pain in the lateral and sub-patellar areas of his left knee that is worsened after prolonged periods of walking and after stair climbing, kneeling, and squatting would constitute a flare-up. Retrospective opinion: 3. The examiner is asked to provide a retrospective opinion, as best as can be ascertained from the Veteran's self-report of current and past experiences, as well as from clinical records and other evidence, for the May 2010, January 2013, December 2018, and January 2019 VA examinations. For these examinations, the examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and/or after repeated use over time. For all residuals of a left knee replacement disability opinions: 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 and/or following repetitive use over time based on the other evidence of record, to include the Veteran's lay statements of current and past experiences. 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). 4. Then, schedule the Veteran for a VA back (thoracolumbar spine) examination by an appropriate clinician, who has not previously examined the Veteran, if feasible, to determine the severity of his service-connected back disability. The claims file must be made available to the examiner and all necessary testing should be conducted, to include active thoracolumbar spine motion, passive thoracolumbar spine motion, and note the presence of pain during weightbearing and non-weightbearing. The examiner is asked to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to his back disability and discuss its effect on any occupational functioning and activities of daily living. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination of current and past experiences, state whether the Veteran experiences flare-ups of his service-connected back disability, and how he characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare-ups, identify the: a. frequency; b. duration; c. precipitating factors; and d. alleviating factors. The examiner must address whether the Veteran's missing work; as well as the Veteran's report of experiencing stiffening in his back and inability to lift more than 20 pounds, touch his toes, or bend over to don his socks or pick-up items would constitute a flare-up. Retrospective opinion: 5. The examiner is asked to provide a retrospective opinion, as best as can be ascertained from the Veteran's self-report of current and past experiences, as well as from clinical records and other evidence, for the June 2016 and January 2019 VA examinations. For these examinations, the examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and/or after repeated use over time. Also, the examiner must assess the current severity of any neurological impairment associated with the Veteran's service-connected thoracolumbar spine disability, to include radiculopathy of the bilateral lower extremities. The examiner is also asked to opine whether it is medically possible to determine whether the Veteran's radiculopathy of the right and left lower extremities manifested prior to January 8, 2019. For all thoracolumbar spine opinions: 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 and/or following repetitive use over time based on the other evidence of record, to include the Veteran's lay statements of current and past experiences. 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). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.