Citation Nr: 22017264 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-27 575A DATE: March 24, 2022 REMANDED Entitlement to a rating higher than 10 percent for limitation of left hip extension is remanded. Entitlement to a compensable rating for limitation of flexion of the left hip is remanded. Entitlement to a compensable rating for trochanteric bursitis of the left hip is remanded. Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating higher than 20 percent for thoracolumbar sprain with traumatic arthritis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1988 to January 1997. He testified before the undersigned Veterans Law Judge at a Travel Board hearing in July 2019. A transcript of the hearing is of record. The Board remanded this matter in July 2021 for additional development to include obtaining additional VA examinations. VA examinations were performed in October 2021. Unfortunately, a review of the examination reports illustrates lack of compliance with the directives and therefore an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) The Board recognizes that the VA Back Conditions and VA Hip and Thigh Conditions Disability Benefits Questionnaires (DBQ) state that the Veteran denied flare-ups, and as such the examiner did not elicit information from the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups. A review of the hearing transcript shows that the term "flare-up" was not used. However, as stated in July 2021 remand, during the July 2019 hearing the Veteran described events consistent with flare-ups. He testified, "my total back pain, hip, leg, and foot hurts all the time." He also stated, "I have constant pain," and when asked to describe the severity he stated that he was at a 7 or 8, and that he just went to the emergency room due to the severe pain. Therefore, on remand the Board will request that the examiner be more descriptive when asking the Veteran about whether he experiences flare-ups. Also, the directives requested the examiner to consider the Veteran's lay reports as stated in the hearing and to consider the July 2019 private treatment record. Although the examiner did specifically list out the July 2019 medical record in the evidence review/comments section, no reference is made to it anywhere in the four VA DBQs to show he considered it. Thus, the directives will be more explicit and again request that this record be considered, as well as the Veteran's reporting made during the hearing. As the matters are being remanded the Board will request that the examiner clarify an issue regarding the radiculopathy of the Veteran's left lower extremity. In a March 2019 deferred rating decision, the RO highlighted the discrepancies between VA examination reports. A June 2013 VA examination report shows radiculopathy of both the sciatic and femoral nerve while a January 2016 VA examination report shows radiculopathy of the sciatic nerve only. Despite the RO requesting that an examiner reconcile the conflicting information and to clearly state which examination is correct and why, there does not appear to have been any development consistent with this request. Therefore, on remand, the Board will request clarification. Of note, one VA examiner performed all three examinations in October 2021, and authored the four examination reports and this examiner was not consistent in which nerve or nerves he stated were impacted by radiculopathy. The October 2021 VA Back DBQ shows that only the sciatic nerve is impacted, while the October 2021 VA Peripheral Nerves DBQ shows that both the sciatic and femoral nerves are impacted. Accordingly, clarification is even more needed. Lastly, the Board recognizes that the October 2021 VA examiner concluded that there is no radiculopathy of the right lower extremity. However, given the already mentioned inadequacies of the October 2021 VA examinations and the fact that the June 2013 VA Back DBQ notes involvement of both the femoral nerve and sciatic nerve of both lower extremities, the Board will again ask the examiner to determine whether there is a current disability of radiculopathy of the right lower extremity. As the issue of TDIU is inextricably intertwined with the issues being remanded this claim is also being remanded. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should schedule the Veteran for an examination by an appropriate clinician, preferably with an examiner other than the one who performed the October 2021 examinations, to determine the current severity of his service-connected left hip disability. The claims file, to include a copy of the June 2021 remand and this remand must be provided to the examiner. The examiner is advised that current level of severity includes any time as of January 2012 to the present. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's current disability of the left hip 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. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. When discussing with the Veteran whether he experiences flare-ups of the left hip, the examiner is requested to describe and explain to the Veteran what is meant when discussing 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). To the extent possible, the examiner should identify any symptoms and functional impairments due to the left hip disability alone and discuss the effect of the Veteran's left hip disability on any occupational functioning and activities of daily living. 2. The AOJ should schedule the Veteran for an examination by an appropriate clinician, preferably with an examiner other than the one who performed the October 2021 examinations, to determine the current severity of his service-connected low back disability with associated service-connected radiculopathy of the left lower extremity. The claims file, to include a copy of the June 2021 remand and this remand must be provided to the examiner. The examiner is requested to provide clarification as to the conflicting medical evidence regarding what nerves are impacted. A June 2013 VA Back DBQ report shows radiculopathy of both the sciatic and femoral nerve. A January 2016 VA Back DBQ report shows radiculopathy of the sciatic nerve only. Additionally, the October 2021 VA Back DBQ report shows that only the sciatic nerve is impacted, while the October 2021 VA Peripheral Nerves DBQ report shows that both the sciatic and femoral nerves are impacted. Please review each report and clearly state which examination (s) is/are correct, provide rationale to support your conclusions, and clearly state what nerve or nerves are impacted by radiculopathy. The examiner is advised that current level of severity includes any time as of January 2012 to the present. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's current disabilities of the low back disability with associated radiculopathy of the left lower extremity 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 indicated. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. When discussing with the Veteran whether he experiences flare-ups of the low back and or left lower extremity, the examiner is requested to describe and explain to the Veteran what is meant when discussing 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). To the extent possible, the examiner should identify any symptoms and functional impairments due to the low back disability and radiculopathy of the left lower extremity alone and discuss the effect of the Veteran's disabilities on any occupational functioning and activities of daily living. The examiner is requested to account for and consider the Veteran's lay reports advanced at his July 2019 Board hearing regarding the severity of his low back and left lower extremity radiculopathy, specifically how he is constant pain, cannot be on his feet long, rates the level of severity at a 7 or 8, and that he went the emergency room (ER) recently because he could not stand the pain (VBMS, document labeled Hearing Transcript, receipt date July 17, 2019, pgs. 6, 10-11 of 18). The examiner is also requested to account for and consider a June 28, 2019, private treatment record that shows the Veteran presented to the ER and was diagnosed with sciatica and a July 9, 2019 private treatment record that shows follow-up just days after the ER visit and that the Veteran experienced bilateral lower extremity numbness without muscle weakness and was diagnosed with lower back pain with sciatica and lumbar radiculopathy (VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date July 22, 2019, pgs. 1-5 of 5). The examiner should also comment on how the Veteran's low back disability and radiculopathy impact his ability to sit and stand. The Veteran contends he cannot walk more than a few houses down and he can only sit for 20 to 30 minutes because of his back pain. If possible, the examiner should also comment on the functional impact caused by the Veteran's left hip, left lower extremity radiculopathy, and low back disability, working together. The examiner is asked to opine as to whether the Veteran has a current diagnosis (as of January 2012) of radiculopathy of the right lower extremity. 1. In providing this opinion, the examiner is requested to review the June 2013 VA Back DBQ, specifically the section in the report that notes involvement of both the femoral nerve and sciatic nerve of both lower extremities and opine as to whether this constitutes a competent medical diagnosis of radiculopathy of the right lower extremity, and if not whether this should be constituted as an error. If the examiner finds a current diagnosis of radiculopathy of the right lower extremity, he/she is asked to provide opinions regarding the following: (b.) Whether the Veteran's radiculopathy of the right lower extremity is a symptom of his service-connected low back disability, or whether it is a distinct disability. (c.) If it is determined that the radiculopathy of the right lower extremity is a distinct disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) the radiculopathy of the right lower extremity had its onset in service or is otherwise related to active service. (d.) If it is determined that the radiculopathy of the right lower extremity is a distinct disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's radiculopathy of the right lower extremity is proximately due to or caused by his service-connected disabilities, to include his service-connected low back disability. (e.) If it is determined that the radiculopathy of the right lower extremity is a distinct disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's radiculopathy of the right lower extremity was aggravated (worsened in severity beyond a natural progression) his service-connected disabilities, to include his service-connected low back disability. The examiner is asked to provide a complete a rationale for all opinions offered. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.