Citation Nr: 18132283
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-36 731
DATE:	September 6, 2018
REMANDED
Entitlement to an evaluation higher than 20 percent for intervertebral disc syndrome (IVDS) with laminectomy L5-S1 is remanded.
Entitlement to an initial evaluation higher than 10 percent for lumbar radiculopathy of the right lower extremity, as secondary to service-connected IVDS with laminectomy L5-S1 is remanded.
Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, mood disorder, not otherwise specified (NOS), and depressive disorder NOS, as secondary to service-connected IVDS with laminectomy L5-S1 is remanded. 
Entitlement to an effective date earlier than July 21, 2014 for the assignment of a total rating based on individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from June 1973 to June 1977. This matter is before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and February 2016 rating decisions.
Although the Veteran originally claimed service connection for anxiety and depression, the evidence also shows a diagnosis of a mood disorder NOS that is reasonably encompassed by her claim. The issue has been reclassified accordingly. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009).
Psychiatric Disorder
The Veteran has been diagnosed with anxiety, depressive disorder NOS, and mood disorder NOS. In correspondence dated February 2015, the Veteran indicated that her anxiety and depression were secondary to her service-connected IVDS with laminectomy L5-S1 and right lower extremity lumbar radiculopathy. The Veteran has not been provided a VA examination for her psychiatric claim. On remand, a VA examination and etiological opinion must be obtained.
IVDS with Laminectomy L5-S1 and Right Lower Extremity Lumbar Radiculopathy
The Board must reconsider the claims for IVDS with laminectomy L5-S1 and right lower extremity lumbar radiculopathy in light of Correia v. McDonald, 28 Vet. App. 158 (2016), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Correia provides a precedential finding that the final sentence of 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. An examination must also determine whether a disability is manifested by weakened movement, excess fatigability, incoordination, or pain, and, where feasible, express these determinations in terms of the degree of additional range of motion lost due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca, 8 Vet. App. at 206-07; see also 38 C.F.R. § 4.59. 
In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Sharp, 29 Vet. App. at 33.
The Board has reviewed the Veteran’s VA examinations for IVDS with laminectomy L5-S1 and lumbar radiculopathy of the right lower extremity throughout the appeals period, namely the April 2014 and May 2015 VA examination reports, and concludes that these findings do not meet the specifications of Correia. Specifically, the examiners did not address whether the range of motion testing was conducted on active or passive motion and weight-bearing or nonweight-bearing. 
In addition, the April 2014 and May 2015 VA examiners indicated they were unable to make opinions regarding the additional loss of range of motion due to pain, weakness, fatigability, or incoordination during a flare-up without resorting to mere speculation. Pursuant to Sharp, a VA examiner has the obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups. Sharp, 29 Vet. App. at 33.
Given this, the Board is not satisfied that the examination reports are adequate for contemporaneous ratings. Therefore, additional examinations are necessary under 38 C.F.R. § 3.159(c)(4).
There is no indication that the May 2015 VA examination of the Veteran’s right lower extremity lumbar radiculopathy is inadequate. However, as the Veteran will be re-examined, as to her IVDS with laminectomy L5-S1, multiple years after the May 2015 VA examination, to make certain that the current severity of her right lower extremity lumbar radiculopathy is recorded, the AOJ should provide the Veteran an adequate examination of her right lower extremity lumbar radiculopathy.
Earlier Effective Date for TDIU 
Finally, regarding an earlier effective date for a TDIU prior to July 21, 2014, that issue is inextricably intertwined with the claims for service connection for a psychiatric disability and increased ratings for IVDS and right lower extremity. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). As the Board is remanding those claims, adjudication of the TDIU claim will be deferred pending resolution of those other claims.
The matters are REMANDED for the following action:
1. Schedule the Veteran for a VA examination to assess the current level of severity of her service-connected IVDS with laminectomy L5-S1 and right lower extremity lumbar radiculopathy. 
The claims folder and this remand should be made available to the examiner for review, and the examination report should reflect that such a review was undertaken. 
All necessary diagnostic testing and evaluation should be performed, and all clinical findings reported in detail, specifically to include range of motion testing of the lumbar spine considering active and passive motion, in weight-bearing and non-weightbearing. The examiner should also determine whether there is weakened movement, excess fatigability, or incoordination, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination; and whether there is any pain which could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. If complete range of motion testing is impossible due to the Veteran’s disabilities or is otherwise inappropriate, the examiner must specifically state such. 
The examiner should determine whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71a, and the frequency and total duration of such episodes over the course of the past 12 months.
The examiner should identity any neurological manifestations of the Veteran’s IVDS with laminectomy L5-S1, to include bowel or bladder dysfunction, beyond that of the already service-connected radiculopathy of the right lower extremity.
The examiner should characterize the lumbar radiculopathy of the right lower extremity as mild, moderate, moderately severe, or severe and indicate whether there is muscular atrophy and, if so, the extent of such atrophy.
The examiner should fully describe all functional impact of the Veteran’s IVDS with laminectomy L5-S1 and right lower extremity lumbar radiculopathy.
2. Afterward, schedule the Veteran for a VA examination to determine the nature and etiology of her acquired psychiatric disorder, to include anxiety, mood disorder NOS, and depressive disorder NOS. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions:
(a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s acquired psychiatric disorder, to include anxiety, mood disorder NOS, and depressive disorder NOS, was caused by or aggravated by the Veteran’s service-connected IVDS with laminectomy L5-S1 and/or right lower extremity lumbar radiculopathy. If such aggravation is found, the examiner should determine: (i) the baseline manifestations of the Veteran’s psychiatric condition absent the effect of aggravation, and (ii) the increased manifestations that are proximately due to each service-connected disability.
A detailed rationale for the opinion must be provided. Review of the entire claims file is required. 
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If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).
 
M. H. HAWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Norwood, Associate Counsel

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