Citation Nr: 22017758 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 11-08 973 DATE: March 30, 2022 ORDER Entitlement to a rating in excess of 20 percent for right shoulder strain prior to October 4, 2019, is denied. Entitlement to a rating in excess of 30 percent for right shoulder strain from October 4, 2019 to December 10, 2020, is denied. Entitlement to a rating in excess of 20 percent for right shoulder strain beginning December 11, 2020, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for asthma prior to July 5, 2021, is remanded. Entitlement to a rating in excess of 30 percent on and after July 5, 2021, for asthma, is remanded. Entitlement to a rating in excess of 10 percent for left knee disability prior to August 6, 2020, is remanded. Entitlement to a rating in excess of 20 percent on and after August 6, 2020, for left knee disability, is remanded. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the spine with coccyx strain is remanded. Entitlement to a rating in excess of 10 percent prior to April 9, 2018, for intermittent, left elbow musculoligamentous strain is remanded. Entitlement to a rating in excess of 20 percent on and after April 9, 2018, for intermittent, left elbow musculoligamentous strain is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) prior to July 28, 2019, is remanded. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's right shoulder does not exhibit a scapulohumeral disorder, flail shoulder, or impairment of the clavicle or scapula. 2. The evidence does not demonstrate non-compensated residual impairment of function of the right shoulder. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for right shoulder strain prior to October 4, 2019, in excess of 30 percent from October 4, 2019, to December 10, 2020, and in excess of 20 percent from December 11, 2020, to include extraschedular consideration, for residuals of right acromioclavicular joint separation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.951, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 - 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 2001 to July 2002, from December 2002 to September 2003, from August 2005 to December 2006, and from January 2011 to January 2012, including service in Iraq. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in December 2020, at which time they were remanded for further development. The November 2019 statement of the case (SOC) increased the Veteran's evaluation for his right shoulder strain to 30 percent, effective October 4, 2019. Following the December 2020 Board remand, the RO decreased the Veteran's evaluation to 20 percent, effective December 11, 2020. The Veteran's claim has been amended to reflect these changes. In a July 2021 rating decision, the RO granted a 30 percent evaluation for asthma, effective July 5, 2021, and a 20 percent evaluation for a left knee disability, effective August 6, 2020. The Veteran's claims have been amended to reflect these changes. The December 2020 Board decision granted the issues of entitlement to service connection for headaches, entitlement to a rating of 70 percent, but not more, for posttraumatic stress (PTSD) disorder, and denied entitlement to a compensable rating for epididymitis. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a rating in excess of 20 percent for right shoulder strain prior to October 4, 2019, in excess of 30 percent from October 4, 2019, to December 10, 2020, and in excess of 20 percent from December 11, 2020, to include extraschedular consideration By way of history, the Board again highlights that the Veteran's disability was rated as 20 percent disabling prior to October 4, 2019. The November 2019 statement of the case (SOC) increased the Veteran's evaluation for his right shoulder strain to 30 percent, effective October 4, 2019. Following the December 2020 Board remand, the RO decreased the Veteran's evaluation to 20 percent, effective December 11, 2020. The Board notes that the Veteran is right hand dominant. Normal range of motion in the shoulder is from zero to 180 degrees of forward elevation (flexion) and zero to 180 degrees of shoulder abduction. See 38 C.F.R. § 4.71a, Plate I. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. Diagnostic Code 5200 provides evaluations for ankylosis of the scapulohumeral articulation and Diagnostic Code 5202 provides evaluations for impairment of the humerus. As there is no evidence of record supporting impairment of the humerus, the Veteran is not entitled to a rating under Diagnostic Code 5202. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). During the course of the appeal, VA revised the portion of the rating schedule that addresses the musculoskeletal system. Diagnostic Code 5201, which is pertinent to the Veteran's appeal, was revised effective from February 7, 2021. Diagnostic Code 5201 now reads as follows: flexion and/or abduction limited to 25 degrees from side warrants a 40 percent rating for the major extremity and a 30 percent rating for the minor extremity. Limitation of motion of midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 30 percent rating for the major extremity and 20 percent for the minor extremity. Limitation of motion at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for the major and minor extremity. Under Diagnostic Code 5203, malunion of the clavicle or scapula warrants a 10 percent rating in both the major and minor extremity. Nonunion of the clavicle or scapula without loose movement warrants a 10 percent rating in both the major and minor extremity. Nonunion of the clavicle or scapula with loose movement warrants a 20 percent rating in both the major and minor extremity. Dislocation of the clavicle or scapula warrants a maximum 20 percent rating in both the major and minor extremity. Or rate on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5203. As to a current diagnosis, the Board notes that the Veteran's shoulder disability has been diagnosed as a right shoulder strain and degenerative arthritis. Turning to the medical evidence at hand, the Veteran received a VA examination in July 2017 and reported an intermittent ache in his right shoulder. He did not, however, report flare-ups and his range of motion measurements were all normal. There was pain on abduction and mild tenderness most likely attributed to the shoulder strain. The Veteran received a VA examination in October 2019 and reported that, over time, his right shoulder had begun to hurt more. He was unable to reach objects out of the cabinet, wash his own hair, or lay in a bed due to pain. He did not, however, report flare-ups. Upon examination, flexion was to 50 degrees, abduction to 45 degrees, external rotation to 70 degrees and internal rotation to 90 degrees. There was pain noted on examination and it caused functional loss in flexion, abduction and external rotation. There was no additional loss of range of motion after three repetitions and no further loss anticipated during repeated use over time. The examiner noted that muscle strength was reduced during active movement with gravity eliminated, but there was no muscle atrophy. There was, however, favorable ankylosis, described as ankylosis in abduction up to 60 degrees; can reach mouth and head. Finally, the examiner did not note shoulder instability, clavicle, scapula, acromioclavicular joint or sternoclavicular joint conditions, or an impairment of the humerus. The Veteran received a VA examination in December 2020 and reported that his shoulder condition had worsened. He experienced intermittent sharp pain, decrease in range of motion and a decrease of activity. There was also a grinding sensation at times. He did not, however, report flare-ups. Upon examination, flexion was to 90 degrees, abduction to 90 degrees, external rotation to 70 degrees and internal rotation to 60 degrees. There was pain noted on examination and it caused functional loss in all four movements. There was no additional loss of range of motion after three repetitions, but pain significantly limited functional ability with repeated use over time. The examiner found flexion would be to 85 degrees, abduction to 85 degrees, external rotation to 65 degrees and internal rotation to 55 degrees. Muscle strength testing revealed active movement against some resistance, but there was no muscle atrophy. There was also no ankylosis, shoulder instability, clavicle, scapula, acromioclavicular joint or sternoclavicular joint conditions, or impairment of the humerus. From October 4, 2019, to December 10, 2020, the medical evidence did not show intermediate or unfavorable ankylosis to warrant a rating in excess of 30 percent under Diagnostic Code 5200. The Board has also considered an increased rating under Diagnostic Code 5201 for limitation of motion, but the medical evidence of record did not show limitation of motion of the arm to 25 degrees from the side. Prior to October 4, 2019 and from December 11, 2020, the medical evidence of record did not show limitation of motion of the arm midway between side and shoulder or limitation of motion of the arm to 25 degrees from side. The Board has additionally considered an increased rating under the revised Diagnostic Code 5201; however, the Veteran did not exhibit flexion and/or abduction limited to 25 degrees from side or lost range of motion from midway between side and shoulder level. As such, a rating in excess of 20 percent under Diagnostic Code 5201 is not warranted under either criteria. Moreover, the Board has considered the Veteran's reports of pain throughout the appeal; however, the Board does not find that the Veteran's symptomatology, even when considering pain on motion, demonstrates that his disability results in lost range of motion which warrants a rating in excess of 20 percent prior to October 4, 2019 and from December 11, 2020, and in excess of 30 percent from October 4, 2019 to December 10, 2020. Specifically, the Board notes that the Veteran only had an estimated 5 degrees of additional loss of range of motion after repeated use over time in December 2020, but the ranges of motion would not warrant a compensable rating under Diagnostic Code 5201. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 20 percent prior to October 4, 2019 and from December 11, 2020, and in excess of 30 percent from October 4, 2019 to December 10, 2020, must be denied. The Board has also considered the amendments to the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, Diagnostic Code 5002 being renamed from rheumatoid arthritis to multi-joint arthritis to take into account all systemic arthritis (except post-traumatic and gout) does not impact the Veteran's claim. Id. The amendment to Diagnostic Code 5010 clarifying that post-traumatic arthritis can be rated as limitation of motion, dislocation, or instability is not applicable as the type of impairment in the right shoulder is limitation of motion. Id. The amendments to Diagnostic Code 5201 clarifying that limitation of motion of arm includes either flexion or abduction does not impact the Veteran's claim; as, effective February 7, 2021, there is no evidence of any limitation of flexion or abduction to 45 degrees. Id. Finally, the clarification that Diagnostic Codes 5201 and 5202 provide that shoulder level is 90 degrees and midway is 45 degrees does not impact the Veteran's claim as he is already rated on the basis of limitation to motion of the arm at shoulder level, which warrants a 20 percent rating for both the major and minor extremity under Diagnostic Code 5201. Id. Extraschedular Consideration The Board notes that ordinarily, in the evaluation of service-connected disabilities, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining entitlement to an extraschedular rating. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, it must be determined whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and the disability picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to VA's Director of Compensation Services to determine whether the disability requires the assignment of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for the Federal Circuit had held that an extraschedular rating may be assigned which considers the combined impact of multiple service-connected disorders. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014); overruling Johnson v. Shinseki, 26 Vet. App. 237, 248 (2013). However, in Yancy v. McDonald, 27 Vet. App. 484, 496 (2016) it was held that when there are multiple service-connected disorders the Board's jurisdiction was limited to only those service-connected disorder(s) on direct appeal because it lacked jurisdiction to consider whether extraschedular referral for any disability or combination of disabilities not in appellate status, just as it lacks jurisdiction to determine the proper schedular rating for a disability not on appeal. Yancy, 27 Vet. App. at 496 (2016). In this regard, on December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321(b)(1), effective January 8, 2018, to clarify that an extraschedular rating may not be based on the combined effect of multiple service-connected disabilities. See Final Rule, 82 Fed. Reg. 57830, 57,835 (Dec. 8, 2017); see also proposed revision 81 Fed. Reg. 23228, 23232 (Apr. 20, 2016). This revision is applicable to all applications for benefits that are received by VA on or after January 8, 2018, or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit (Federal Circuit) on January 8, 2018. Thus, only the service-connected right shoulder strain and degenerative arthritis will be considered for potential extraschedular evaluation. Caution must be taken not to conflate the criteria in 38 C.F.R. § 3.321(b)(1) with the criteria for a total disability rating based on individual unemployability (TDIU) in 38 C.F.R. § 4.16 (b). "[T]he effect of a service-connected disability [is] measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321 (b)(1) [than] for purposes of a TDIU [rating] under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former requires marked interference with employment, the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. at 117 (extraschedular consideration under § 3.321 may be warranted for disability that presents a loss of earning capacity that is less severe than total unemployability). Pursuant to the December 2020 Board remand, an advisory opinion was submitted for extraschedular consideration in July 2021 and the Director of Compensation Service noted that the Veteran was service connected for right shoulder strain and degenerative arthritis. During the course of his appeal, the Veteran had a supplemental claim for entitlement to increased benefits based on unemployability running simultaneous to the current appeal and was reexamined in December 2020 outside the scope of this appeal. As a result, his evaluation was reduced from 30 percent to 20 percent by rating decision dated May 27, 2021. The Director concluded that the examinations adequately described the limitations of the right shoulder, and the rating schedule sufficiently compensated the Veteran for this disability. Thus, entitlement to an extraschedular rating was denied. Initially, the Board notes that the determination of the VA Director of Compensation was self-described as an advisory opinion. However, it is, in actuality, an adjudication and is not medical evidence which, in itself, the Board can rely upon in reaching a determination. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015) and Kuppamala v. McDonald, 27 Vet. App. 447, 455-56 (2015). However, the Director's opinion is not a final determination on the matter. Rather, the Board must review all the evidence in rendering a final determination regarding whether the appellant is entitled to an extraschedular rating. As the issue of extraschedular consideration for the Veteran's right shoulder strain and degenerative arthritis was adjudicated in the first instance by the Director in July 2021, the Board is now free to review this matter de novo. Floyd v. Brown, 9 Vet. App. 94 (1996). There is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). See also Wages v. McDonald, 27 Vet. App. 233, 239 (2015) ("[T]he Director's decision is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence." The Board conducts a de novo review of the Director's decision.) More recently, however, on March 14, 2019, the Veterans Court (CAVC) also issued Ray v. Wilkie, 31 Vet. App. 58 (2019) which, in part, addressed the effect of the Board's referral of a case for extraschedular consideration when the Board later reviews the Director's decision not to award an extraschedular disability rating. The Court held that the Board's determination to refer a case for extraschedular consideration is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies the claim after referral, the Board "must provide adequate reasons or bases for deviating from its earlier referral decision." Even more recently, on May 28, 2020, the CAVC issued Smiddy v. Wilkie, 32 Vet. App. 350 (2020). In Smiddy, the Court extended its holding in Ray regarding the initial decision of whether to refer the issue of an extraschedular TDIU under 38 C.F.R. § 4.16(b) to the Director of Compensation Services to the initial decision of whether to refer the issue of an extraschedular rating decision under 38 C.F.R. § 3.321(b)(1) to the Director. In other words, when the Board denies entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b), it must provide adequate reasons and bases for any factual determination that deviates from its earlier decision to remand the claim for referral to the Director of Compensation Service. Here, however, the initial December 2020 Board remand did not make factual findings when referring this appeal to the Director. Consideration of an extraschedular rating, after a determination by the Director in the first instance, requires consideration of the issue of whether the schedular rating criteria adequately contemplate the Veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Concerning the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran's right shoulder strain and degenerative arthritis is rated due to evidence of ankylosis and pain on movement. In October 2019, he described the functional impact of his shoulder disability, such as an inability to reach objects out of the cabinet, wash his hair, or lay in a bed due to pain. In this regard, the Board notes that limitation of motion is contemplated under the assigned diagnostic codes and functional loss due to pain is expressly contemplated by DeLuca. In summary, the schedular criteria for shoulder and arm disabilities contemplate a wide variety of manifestations of functional loss. The Veteran's stated symptoms, including limitation of motion and pain, are all contemplated by the schedular rating criteria. Because the Rating Schedule was purposely designed to compensate for such functional effects of his disability in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for muscle injury disabilities, the Board concludes that the schedular rating criteria reasonably describe his disability picture and that an extraschedular rating is not warranted REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for asthma prior to July 5, 2021 Entitlement to a rating in excess of 30 percent on and after July 5, 2021, for asthma Entitlement to a rating in excess of 10 percent for left knee disability prior to August 6, 2020 Entitlement to a rating in excess of 20 percent on and after August 6, 2020, for left knee disability The Board's December 2020 Board remand included issues seeking evaluations in excess of 10 percent for asthma and in excess of 10 percent for a left knee disability. As discussed in the Introduction, in a July 2021 decision, the RO granted a 30 percent evaluation for asthma, effective July 5, 2021, and a 20 percent evaluation for a left knee disability, effective August 6, 2020. A supplemental statement of the case (SSOC) was not prepared following this partial grant of benefits. Controlling VA laws provide that the RO must issue an SSOC to the Veteran and his/her representative (if any) in cases, such as the present, where an issue remanded by the Board is not granted to the fullest extent upon consideration of additional pertinent evidence unless the Board's remand specifically waives this duty, which did not occur in this case. 38 C.F.R. §§ 19.31 (c), 19.38. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the spine with coccyx strain The Veteran was last examined for his spine disability in December 2020, where he reported painful flare-ups. Prior to this examination, he also reported "more frequent flare-ups" with increased pain at an August 2017 VA examination. The examiner opined, however, that he could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability, and to what extent range of motion was limited with repeated use over time and during flare-ups, without mere speculation because the Veteran was not being examined during a flare-up. He did not use the information provided by the Veteran or obtain additional information from the Veteran or the treatment records such as the frequency, duration, characteristics, severity, or functional loss with repeated use over time or during flare-ups. "[B]efore the Board can accept an examiner's statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the 'medical community at large' and not the insufficient knowledge of the specific examiner." See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Therefore, an addendum to the August 2017 VA medical opinion must be obtained before the claim can be decided on the merits. Entitlement to a rating in excess of 10 percent prior to April 9, 2018, for intermittent, left elbow musculoligamentous strain Entitlement to a rating in excess of 20 percent on and after April 9, 2018, for intermittent, left elbow musculoligamentous strain The Veteran's last VA examination for his service-connected left elbow disability was in December 2020. Prior to this examination, however, the Veteran was examined in May 2008, February 2010, and October 2012, and information regarding range of motion in passive motion in weight-bearing and nonweight-bearing was not conducted. Consequently, the Board finds that it must remand the claim in order for a retroactive opinion with regards to whether the results of the May 2008, February 2010, and October 2012 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). The Veteran also reported flare-ups at the August 2017 VA examination, indicating that, approximately once per week, the elbow will cause an aching pain. The examiner opined, however, that he could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability, and to what extent range of motion was limited with repeated use over time and during flare-ups, without mere speculation because the Veteran was not being examined during a flare-up. He did not use the information provided by the Veteran or obtain additional information from the Veteran or the treatment records such as the frequency, duration, characteristics, severity, or functional loss with repeated use over time or during flare-ups. "[B]efore the Board can accept an examiner's statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the 'medical community at large' and not the insufficient knowledge of the specific examiner." See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Therefore, addendums to the May 2008, February 2010, October 2012, and August 2017 VA medical opinions must be obtained before the claim can be decided on the merits. Entitlement to a TDIU prior to July 28, 2019 With respect to the Veteran's assertion that he is unable to work due to his claimed service-connected disabilities, the Board concludes that further development may provide evidence in support of his claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Issue an SSOC with respect to the issues of entitlement to an initial rating in excess of 10 percent for asthma prior to July 5, 2021, and in excess of 30 percent thereafter and entitlement to a rating in excess of 10 percent for left knee disability prior to August 6, 2020, and in excess of 20 percent thereafter, provide an appropriate time for response, and thereafter return the matter to the Board for further appellate review. 2. Obtain an addendum to the August 2017 lumbosacral spine examination report. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner is asked to address the following: In assessing functional loss, the effect of repeated use over time and any flare-ups and functional ability must be considered, and the examiner must consider all procurable and ascertainable data from the record and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent it is possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resorting to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. (Continued on the next page) 3. Provide the Veteran with an addendum opinion from an appropriate VA examiner as to whether the Veteran's range of motion results from the May 2008, February 2010, and October 2012 VA Elbow and Forearm examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner's best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. In assessing functional loss noted in the August 2017 VA examination, the effect of repeated use over time and any flare-ups and functional ability must be considered, and the examiner must consider all procurable and ascertainable data from the record and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent it is possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resorting to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Christopher J. O'Donnell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.