Citation Nr: 18124072
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 13-09 057A
DATE:	August 6, 2018
ORDER
Entitlement to an initial 10 percent rating for spurring of the left tibial apophysis (also claimed as left knee pain) is granted, subject to controlling regulations governing the payment of monetary benefits.  
Entitlement to a separate rating for left foot plantar fasciitis is denied.  
REMANDED
Entitlement to a rating in excess of 10 percent prior to October 9, 2015, and 20 percent from October 9, 2015, forward, for cervical strain with spondylosis and stenosis is remanded.
Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is remanded.
Entitlement to an effective date before February 24, 2011, for the grant of a 20 percent rating for left upper extremity radiculopathy is remanded.  
Entitlement to a rating in excess of 20 percent for left foot degenerative joint disease and plantar fasciitis status post navicular accessory bone fracture with arthroscopic surgical repair is remanded.

Entitlement to an effective date before December 3, 2012, for the grant of a 20 percent rating for left foot degenerative joint disease and plantar fasciitis status post navicular accessory bone fracture with arthroscopic surgical repair is remanded.
FINDINGS OF FACT
1. During the appeal period, spurring of the left tibial apophysis was manifested by painful motion with flexion being 140 degrees and extension being zero degrees; recurrent subluxation or lateral instability, dislocated semilunar cartilage, and/or symptomatic removal of semilunar cartilage have not been demonstrated. 
2. The manifestations of left foot plantar fasciitis and left foot degenerative joint disease are the same.  

CONCLUSIONS OF LAW
1. The criteria for an initial disability rating of 10 percent, but no higher, have been met for spurring of the left tibial apophysis.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5258, 5259, 5260, 5261, 5262, 5263.
2. The criteria for a separate rating for left foot plantar fasciitis is not warranted.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5284. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from August 1983 to November 1992.  
As noted in the August 2017 Board remand, in March 2015, the Board denied the issues of an effective date earlier than February 24, 2011, for the grant of a 10 percent rating for left upper extremity radiculopathy, and an increased rating of a left foot disability. The issues of entitlement to increased ratings for cervical spine disability and left upper extremity radiculopathy were remanded for further development.
In August 2017 the Board remanded the issues currently on appeal.  The Board notes that in the remand there is a typographical error in the characterization of the issue pertaining to higher ratings of the cervical spine as the issue incorrectly included a rating higher than 30 percent from October 9, 2015.  The Veteran instead has been granted a 20 percent rating from October 9, 2015 and the issue currently before the Board is entitlement to a rating in excess of 10 percent prior to October 9, 2015, and 20 percent from October 9, 2015, forward, for cervical strain with spondylosis and stenosis.  
In the August 2017 remand, the Board further noted that an October 2013 rating decision, a February 2015 Statement of the Case, and a December 2015 Supplemental Statement of the Case (SSOC) included the issues of an increased rating for a left foot disability, entitlement to a separate rating for plantar fasciitis, and an effective date earlier than December 3, 2012 for the 20 percent rating for a foot disability.  Although these issues were addressed in the March 2015 Board decision, the Board considered them to be newly appealed issues as the Veteran appealed those issues in an April 2015 Form I-9, which was received following the March 2015 Board decision and the December 2015 SSOC was issued thereafter.
The Veteran appealed the issue of an effective date earlier than February 24, 2011, for the grant of a 10 percent rating for left upper extremity radiculopathy to the United States Court of Appeals for Veterans Claims (hereinafter, “the Court”).  Thus the issues currently before the Board are as listed on the title page.  
With respect to the issues being decided herein, namely an initial compensable rating for a left knee disability and a separate rating for left foot plantar fasciitis, in a brief in June 2018, the Veteran’s representative contended that the examiner who conducted the December 2017 VA examinations was not shown to have any particular expertise in evaluating orthopedic disabilities.  However, on review, the Board finds that the examinations are fully adequate as they were provided by a medical professional, in this case a medical doctor, who is qualified through education, training, or experience to offer medical diagnosis, statements, and opinions.  Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician’s assistant was competent to perform examination).  The Board may assume a VA medical examiner is competent.  Hilkert v. West, 12 Vet. App. 145, 151 (1999) (VA may presume the competence of an examiner, and an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error).
The Court in Correia v. McDonald, 28 Vet. App. 158 (2016) emphasized that 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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  
The Veteran was afforded VA examinations prior to the Court’s holding in Correia.  To the extent that these examinations may not be in full compliance with the holdings in Correia, the Board finds that it is not feasible to expect an examiner to be able to provide retrospective opinions to determine joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing.  Further, on VA examination in December 2017, the examiner addressed the concerns raised in Correia in the examination report.
Lastly, in a recent case, Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court emphasized that case law and VA guidelines anticipate that VA examiners will offer opinions on the severity of flare-ups based on estimates derived from information procured from relevant sources, including lay statements of the Veteran.  However, as the Veteran denied having flare-ups in his left knee on the VA examinations during the appeal period, the matter of whether the examinations complied with Sharp is moot.  
Neither the Veteran nor his representative has raised any issues that are not discussed herein, nor have any other issues been reasonably raised by the record.  Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  
Rating Principles
A disability rating is 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy.  38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  
In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time.  See DeLuca 8 Vet. App. at 206.  
Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).  The Court has held that a higher rating can be based on “greater limitation of motion due to pain on use.”  See DeLuca 8 Vet. App. at 206.  Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.”  38 C.F.R. § 4.40.  Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss.  Id.
Further, when evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca; see also Mitchell 25 Vet. App. at 44.  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 
1. Entitlement to an initial compensable rating for spurring of the left tibial apophysis.
The Veteran’s service-connected left tibial apophysis (herein after left knee) has been rated under Diagnostic Codes 5003-5257.  
Diagnostic Code 5003 provides that degenerative arthritis that is established by x ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When there is some limitation of motion of the specific joint or joints involved that is noncompensable (zero percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 
Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.  Diagnostic Codes 5260 and 5261 are used to rate limitation of flexion and of extension of the knee.  Under Diagnostic Code 5260, limitation of flexion of the knee to 45 degrees warrants a 10 percent rating.  Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating.  And limitation of flexion of the knee to 15 degrees warrants a 30 percent rating.
Under Diagnostic Code 5261, limitation of extension of the knee to 5 degrees warrants a zero or noncompensable rating.  Limitation of extension of the knee to 10 degrees warrants a 10 percent rating.  Limitation of extension of the knee to 15 degrees warrants a 20 percent rating.  Limitation of extension of the knee to 20 degrees warrants a 30 percent rating.  Limitation of extension of the knee to 30 degrees warrants a 40 percent rating and limitation of extension of the knee to 45 degrees warrants a 50 percent rating.  
Under Diagnostic Code 5257, a 10 percent rating is warranted for slight knee impairment, that is, recurrent subluxation or lateral instability.  A 20 percent rating is assigned for a moderate degree of impairment, and a maximum rating of 30 percent is assigned for severe impairment.  
The terms “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” as contemplated by the requirements of the law.  38 C.F.R. § 4.6.
In VAOPGCPREC 23-97, VA’s General Counsel held that a veteran who has arthritis and instability of the knee might be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability.  When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis.
In VAOPGCPREC 9-98, VA’s General Counsel clarified that when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating.  A separate rating for arthritis could also be based on x ray findings and painful motion under 38 C.F.R. § 4.59.  The VA General Counsel also has held if the criteria for a compensable rating under Diagnostic Codes 5260 and 5261 are met, separate ratings can be assigned.  VAOPGCPREC 9-2004.
By way of history, in a rating decision in October 2013, the RO granted service connection for spurring of the left tibial apophysis (also claimed as left knee pain) and assigned a noncompensable evaluation effective December 3, 2012, the date the Veteran’s claim was received.  
The pertinent evidence during the appeal period shows that on VA knee examination in October 2013, the examiner noted that the Veteran had a rigid AFO brace placed on his foot, which dug into his knee and caused significant pain.  The examiner noted that the Veteran no longer wore the brace but continued to have pain in his left knee on a daily basis.  During the examination the Veteran denied having flare-ups.  Flexion was 140 degrees with no objective evidence of painful motion.  There was no limitation of extension with no objective evidence of painful motion.  The Veteran was able to perform repetitive-use testing with 3 repetitions with no additional loss of range of motion.  The examiner opined that pain, weakness, fatigability or incoordination would not significantly limit function ability during flare-ups or when the joint was used repeatedly over a period of time.  Joint stability tests were normal (to include Lachman test, posterior drawer test, and medial-lateral instability test) and the examiner opined that there was no recurrent patellar subluxation or dislocation.  There was no x-ray evidence of patellar subluxation.  There was no tibial and/or fibular impairment.  There was no evidence of genu recurvatum.  The examiner indicated that the Veteran did not have a meniscal condition or surgical procedures for a meniscal condition.  The examiner noted that the Veteran did not use any assistive devices as normal mode of locomotion, to include a brace.  The examiner indicated that there was x-ray evidence of arthritis.  
In the November 2014 notice of disagreement, the Veteran’s former representative indicated that the Veteran had painful motion and instability as he wore a knee brace.  In the April 2015 Form 9 Appeal the representative continued to state that the Veteran had left knee pain.  
On VA knee examination in December 2017, the Veteran denied having flare-ups.  Flexion was zero to 140 degrees and extension was 140 to zero degrees.  There was no evidence of pain with weight bearing.  There was no additional functional loss of range of motion after three repetitions.  The examiner noted that there were no additional factors contributing to the Veteran’s disability.  There was no ankylosis.  There was no history of recurrent subluxation, lateral instability, or effusion.  There was no history of recurrent effusion.  Joint stability tests were all normal (to include Lachman test, posterior drawer test, and medial and lateral instability tests).  The examiner indicated that there was no tibial and/or fibular impairment as well as no meniscus (semilunar cartilage) conditions.  There was no pain on passive range of motion nor in non-weight bearing and the opposing joint was undamaged.  The examiner noted that the Veteran did not use any assistive devices as normal mode of locomotion.  The examiner indicated that there was no x-ray evidence of arthritis.  
After applying this evidence to the applicable rating criteria, the Board finds that they provide for an initial compensable disability rating of 10 percent, but no higher, for the left knee disability.  
The Board acknowledges that on VA examinations in October 2013 and December 2017 flexion was 140 degrees and extension was zero degrees in the left knee, which does not approximate the criteria for a compensable rating under Diagnostic Codes 5260 and 5261 even if to consider additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups (which the Veteran denied experiencing) and with repeated use.  However, while the December 2017 VA examiner checked the box indicating that there was no x-ray evidence of arthritis, this appears to be a typographical error as the October 2013 VA examiner indicated that there was x-ray evidence of arthritis.  The RO also conceded that there is x-ray evidence of left knee arthritis in the October 2013 rating decision.  
Diagnostic Code 5003 provides a 10 percent rating for arthritis with painful motion when the range of motion does not meet the compensable level for the affected joint.  The Veteran throughout the appeal period has complained of painful motion in his left knee.  See, e.g., November 2014 notice of disagreement and April 2015 Form 9 Appeal.  Notably, it is also the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints due to healed injury as entitled to at least the minimum compensable rating.  38 C.F.R. § 4.59.  Consequently, the Board finds that a 10 percent rating (the minimum compensable rating allowable under the rating schedule) is warranted for the service-connected left knee disability pursuant to 38 C.F.R. §§ 4.59; 4.71a, Diagnostic Code 5003.  
As the evidence does not more nearly approximate a compensable rating based on flexion limited to 45 degrees in both knees, nor a compensable rating based on extension limited to 10 degrees, a separate rating for left knee flexion and extension pursuant to VAOPGCPREC 9-2004 is not warranted.
There is x-ray evidence of arthritis in the left knee and in the November 2014 notice of disagreement the Veteran’s former representative noted that the Veteran wore a knee brace due to instability.  Consideration for a separate rating for instability needs to be addressed.  See VAOPGCPREC 23-97, VAOPGCPREC 9-98.  However, the examiners on the October 2013 and December 2017 VA examinations evaluated the left knee as a stable.  Specifically, all joint stability tests were normal in the left knee, to include Lachman test, posterior drawer test, and medial and lateral instability tests.  It is also noteworthy that both examiners noted that the Veteran was not wearing a knee brace.   Thus the Board finds that the weight of the evidence establishes that the criteria for a separate rating under Diagnostic 5257 for the left knee is not met as the objective findings do not confirm recurrent subluxation or lateral instability.  Although the Veteran asserted having left knee instability, for the reasons discussed above the medical evidence during the appeal period is more competent and credible than the Veteran’s complaints of instability.
Further, the Veteran does not contend nor does the other evidence show tibia and fibula involvement, or genu recurvatum in the left knee, thus Diagnostic Codes 5262 and 5263 are thereby not applicable.
There also is no evidence of ankylosis of the left knee, which is immobility and consolidation of a joint.  See Dorland’s Illustrated Medical Dictionary 86 (28th ed., 1994).  The Veteran demonstrated extension and flexion in the left knee on the examinations of record during the current appeal period and on the December 2017 VA examination the examiner made a specific finding of no ankylosis.  Thus Diagnostic Code 5256 is not applicable.  
As the evidence during the appeal period does not show that the Veteran dislocated or had semilunar cartilage removed from the left knee Diagnostic Codes 5258 and 5259 are inapplicable in the instant case.  
The Board also has considered the Veteran’s statements that describe his left knee pain and discomfort.  The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible.  However, the objective medical findings by skilled professionals are more persuasive which, as discussed above do not support a higher rating or additional separate ratings for the left knee. In essence, the lay evidence, while accepted as credible, does not provide a basis for a higher evaluation or any additional separate ratings.  
2. Entitlement to a separate rating for plantar fasciitis.
The Veteran is service connected for left foot plantar fasciitis as part and parcel of his service-connected left foot degenerative joint disease and plantar fasciitis status post navicular accessory bone fracture with arthroscopic surgical repair, which has been assigned a 20 percent rating under Diagnostic Codes 5003-5284.  The Court has held that two defined diagnoses constitute the same disability for purposes of 38 C.F.R. § 4.14 if they have overlapping symptomatology.  See Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009).  While the Court noted it was possible for two mental disabilities to have different symptoms and therefore be evaluated separately, if the manifestations of the two disabilities were the same, a separate evaluation was not warranted.  Here, as in Amberman, the symptomatology associated with the Veteran’s left foot degenerative joint disease and left foot plantar fasciitis is overlapping, and as such, is evaluated under the same rating criteria.  In a December 2017 VA opinion, a VA examiner noted that on VA examination in March 2012 the Veteran was determined to have left foot osteoarthritis along with plantar fasciitis.  The March 2012 VA examiner opined that the left foot plantar fasciitis developed as a result of his left foot injury in 1992 and associated surgery.  

The December 2017 VA examiner noted that he was asked to distinguish to the extent possible, symptomatology resulting from the Veteran’s arthritis and symptomatology resulting from the Veteran’s plantar fasciitis.  The examiner opined that it is not possible to distinguish between pain including pain on movement resulting from the Veteran’s post-traumatic arthritis caused by his service-connected navicular bone fracture, and his plantar fasciitis.  The December 2017 VA examiner agreed with the March 2012 examiner that the Veteran’s left foot plantar fasciitis should be part of his service-connected left foot disability; however, he noted that both the left foot osteoarthritis and plantar fasciitis contribute to his left foot pain.  
Accordingly, there is no basis for a separate evaluation for left foot plantar fasciitis.  The Board emphasizes that VA regulations specifically prohibit an evaluation of the same disability under various diagnoses, a practice known as “pyramiding.”  38 C.F.R. § 4.14.  In this case, the limitations brought about by the Veteran’s left foot degenerative joint disease are functionally the same as the disabilities brought about by his plantar fasciitis.  Therefore, as the symptoms resulting from his plantar fasciitis have already been contemplated by the rating he is receiving for his service-connected left foot degenerative joint disease and plantar fasciitis status post navicular accessory bone fracture with arthroscopic surgical repair, a separate rating for left foot plantar fasciitis is not warranted.  See Amberman.  The Board notes that for reasons discussed below, the issue of entitlement to a rating in excess of 20 percent for left foot degenerative joint disease and plantar fasciitis is being remanded for further development.  
REASONS FOR REMAND
Issues 3 to 7: Entitlement to a rating in excess of 10 percent prior to October 9, 2015, and 20 percent from October 9, 2015, forward, for cervical strain with spondylosis and stenosis; entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy; entitlement to an effective date before February 24, 2011, for the grant of a 20 percent rating for left upper extremity radiculopathy; entitlement to a rating in excess of 20 percent for left foot degenerative joint disease and plantar fasciitis status post navicular accessory bone fracture with arthroscopic surgical repair; and entitlement to an effective date before December 3, 2012, for the grant of a 20 percent rating for left foot degenerative joint disease and plantar fasciitis status post navicular accessory bone fracture with arthroscopic surgical repair, are remanded.
The Board at this time cannot make a fully-informed decision on the claims for higher ratings and earlier effective dates for the left upper extremity radiculopathy and left foot disability as well the claim for higher ratings for the cervical spine disability.  
As for the claim for a higher rating for the left upper extremity radiculopathy, in August 2017 the Board remanded the issue for a new examination as it determined that the October 2015 VA examination was inconsistent.  On the VA examination for the cervical spine in December 2017, the examiner indicated that the nerve roots involved included the upper radicular group, middle radicular group, and lower radicular group and noted that the impairment on the left side was moderate.  However, there were no findings as to whether the Veteran’s left upper extremity radiculopathy affected any other nerves.  Such findings are necessary in the instant case as during the appeal period there is evidence of additionally affected nerves as EMG studies in November 2013 showed ulnar nerve entrapment and carpal tunnel syndrome.  See November 2013 VA examination for peripheral nerves.  The examiner in the examination report noted that in addition to the radicular groups the impaired nerves included the radial nerve, median nerve, ulnar nerve, and musculocutaneous nerve.  Id.  
Furthermore, the Veteran is currently in receipt of two separate neurological ratings, namely a 20 percent rating under Diagnostic Code 8610 pertaining to the upper radicular group and a 10 percent rating under Diagnostic Code 8516 for the ulnar nerve.  See January 2018 code sheet.  As application of Diagnostic Codes other than Codes pertaining to the radicular groups could potentially result in higher ratings for the left upper extremity, the Board must remand for a VA neurological examination.  As discussed above, although the Board may assume the competency of a VA medical examiner, it is noteworthy that Veteran’s representative in the June 2018 brief indicated that the December 2017 examiner did not have the adequate expertise to evaluate the Veteran’s neurological disorder.  
As to claims for higher ratings for a cervical spine disability and left foot disability, in the recent case, Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court emphasized that case law and VA guidelines anticipate that VA examiners will offer opinions on the severity of flare-ups based on estimates derived from information procured from relevant sources, including lay statements of the Veteran.  The Court held that an estimate regarding the severity of additional functional impairment due to flare-ups cannot be made without resorting to speculation is inadequate if the examiner failed to ascertain adequate information regarding flares-ups - such as: frequency, duration, characteristics, severity, or functional loss - by alternative means, including lay statements.
During the VA examinations in December 2017 for the cervical spine and left foot, the Veteran complained of flare-ups multiple times per day when he turned his neck and of flare-ups in his left foot when he stood or walked for more than fifteen minutes.  Findings pertaining to flare-ups during the December 2017 VA examinations for the cervical spine and left foot are inadequate as the examiner stated that an opinion regarding additional functional limitation during flare-ups could only be provided if two examinations were conducted, one during flare-ups and the other in the absence of a flare-up.  Thus, the examiner failed to solicit the Veteran’s lay statements and consider alternative sources to ascertain information regarding the flare-ups.  On remand, the Veteran should be afforded new VA examinations which address matters in compliance with current case law.  
As a decision on the claims for higher ratings for the cervical spine and left foot disability could significantly impact a decision on the issues of entitlement to an effective date before February 24, 2011, for the grant of a 20 percent rating for left upper extremity radiculopathy and an effective date before December 3, 2012, for the grant of a 20 percent rating for left foot degenerative joint disease and plantar fasciitis, the issues are inextricably intertwined.  A remand of the earlier effective date claims also is required.
Lastly as discussed above, in the August 2017 remand, the Board remanded the issue of entitlement to an effective date before February 24, 2011 for the grant of a 20 percent rating for left upper extremity radiculopathy and instructed that a SSOC be issued if the benefit sought remained denied.  The issue of entitlement to an effective date before February 24, 2011 for the grant of a 20 percent rating for left upper extremity radiculopathy was not addressed in the January 2018 SSOC.  Instead, in the January 2018 SSOC the issue of entitlement to an effective date earlier than February 24, 2011 for the grant of service connection for left upper extremity radiculopathy was addressed, which is not an issue before the Board.  Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App 268 (1998).  
The matters are REMANDED for the following action:
1.  Schedule the Veteran for a VA neurological examination by a neurologist if possible, or other appropriate medical professional, to determine the current extent and severity of the service-connected left upper extremity radiculopathy.  The claims file must be made available to the examiner for review in conjunction with conducting the examination of the Veteran.  The examination report must comply with all protocols for rating the condition.  All necessary tests and studies, to include EMG and NCS testing, should be accomplished and all clinical findings 
 
reported in detail.  The examiner must do the following:
a.) Clearly identify all neurologic abnormalities of the Veteran’s left upper extremity radiculopathy to include motor and sensory.  The examiner must describe whether such abnormalities cause complete paralysis or incomplete paralysis (mild, moderate, moderately severe, or severe), neuritis, or neuralgia of the upper radicular group, middle radicular group, lower radicular group, radial nerve, medial nerve, ulnar nerve, musculocutaneous nerve, and any other nerve of the left upper extremity.  If there are overlapping symptoms among multiple nerves, the examiner should identify to the extent possible the impaired nerve that is most analogous to the Veteran’s symptoms.  
b.) In evaluating the Veteran’s left upper extremity radiculopathy, the examiner is asked to consider the EMG studies in November 2013, which showed radiculopathy involving C5, ulnar nerve entrapment, and carpal tunnel syndrome, as well as the November 2013 VA examination for peripheral nerves whereby the examiner noted that in addition to the radicular groups the impaired nerves included the radial nerve, median nerve, ulnar nerve, and musculocutaneous nerve.
2. Schedule the Veteran for examinations by an orthopedist if possible, or other appropriate medical professional, to determine the current severity of the service-connected cervical strain and left foot degenerative joint disease and plantar fasciitis.  The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria.  In addition to all the findings on the appropriate examination forms, the examiner also is asked to address the following:
a.) Determine whether the Veteran experiences flare-ups in his cervical spine and left foot and to the extent possible estimate any additional functional loss caused by the Veteran’s flare-ups.  If the examiner is unable to do so then before concluding that such an estimate cannot be made without resorting to mere speculation, the examiner should ascertain by alternative means, including the Veteran’s testimony, the following information regarding his flare-ups: frequency, duration, characteristics, severity, or functional loss.  Afterwards the examiner should explain why such an estimate cannot be made.  
b.) Determine whether the Veteran’s left foot disability is moderate, moderately severe, or severe in nature, or is equivalent to actual loss of use.
 
3. Readjudicate the issues currently on appeal, to include the issuance of a SSOC regarding the issue of entitlement to an effective date before February 24, 2011 for the grant of a 20 percent rating for left upper extremity radiculopathy if the benefit sought remains denied.  

 
MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Mac, Counsel 

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