Veteranclaims’s Blog

December 23, 2011

Single Judge Application, Flare-ups and Functional Loss; Mitchell v. Shineski, 25 Vet.App. 32, 44 (2011);

Filed under: Uncategorized — veteranclaims @ 6:06 pm

Excerpt from decision below:
“A functional loss results when ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,or] endurance” is inhibited. 38 C.F.R. § 4.40(2011). When assessing a veteran’s level of disability, the examiner must “express an opinion on whether pain could significantly limit functional ability during flare-ups.” DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). If feasible, limitations of functional ability should be expressed in terms of additional limitation of motion. Id. In Mitchell v. Shineski, the
Court reinforced the principle that:
[when an] examiner failed to address any range-of-motion loss specifically
due to pain and any functional loss during flare-ups, the examination lacks
sufficient detail necessary for a disability rating, and it should have been returned for the required detail to be provided, or the Board should have explained why such action was not necessary. 25 Vet.App. 32, 44 (2011) (holding that “pain alone does not constitute a functional loss under VA regulations” and was not a sufficient basis for a higher disability rating under diagnostic codes that evaluate limitation of range of motion).
In this case, the examiner concluded:
Except as noted in the history and examination above, there is no change
in active or passive range of motion . . . [d]uring repeat motion testing and no additional losses of range of motion of the involved joints or spine due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups. R. at 206. The appellant asserts that the examiner, in so concluding, did not explain his likely limitations caused by pain during flareups. App. Br. at 19. The Court agrees. See R. at 203 (“Flares of increased pain can last minutes to hours and are variable in frequency.”).
Although painful motion is not limited motion for purposes of DC 5260, pain during flare-ups could produce a functional loss that entitles the veteran to additional compensation. See Mitchell, supra.

Although the examiner tersely states that the appellant has no additional loss of range of motion due to flare-ups, the examiner wholly fails to “express an opinion on whether pain could significantly limit functional
ability during flare-ups.” DeLuca v. Brown, 8 Vet.App. at 206.
Accordingly, the Board’s reliance on this inadequate medical examination was clearly erroneous. See Nolen, supra.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0838
MICHAEL SCOTT OSTER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Michael Scott Oster, appeals through
counsel two
January 8, 2010, Board of Veterans’ Appeals (Board) decisions. One Board
decision denied
entitlement to increased disability ratings for lumbosacral strain,
currently rated at 20% disabling,
and a right knee disorder, currently rated at 10% disabling; denied
entitlement to service connection
for a cervical disk disorder and for a left peroneal nerve palsy, both as
secondary to service-
connected lumbosacral strain; and denied entitlement to service connection
for a left knee disorder
as secondaryto service-connecteddisorders. Record (R.) at 19-49. The other
Board decision denied
entitlement to a temporary total disability rating for convalescence
pursuant to 38 C.F.R. § 4.30
(2008) based on L4-L5 laminectomy/discectomy1
with hospitalization from November 30, 2007,
through December 2, 2007, and convalescence thereafter. R. at 3-17. The
Board also remanded the
appellant’s claim of entitlement to service connection for a psychiatric
disorder. The Court does not
have jurisdiction over this remanded claim and will not address it further.
See Kirkpatrick v.
Nicholson, 417 F.3d 1361 (Fed. Cir. 2005).
Laminectomy is the “excision of the posterior arch of a vertebra.”
DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY 1003 (32d ed. 2012) [hereinafter DORLAND’S]. Discectomy (also
called “Diskectomy”) is the “excision of
an intervertebral disk.” DORLAND’S at 547.
1

The appellant and Secretary both filed briefs, and the appellant filed a
reply brief. This
appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§
7252(a) and 7266(a) to
review the Board’s decision. A single judge may conduct this review
because the outcome in this
case is controlled bythe Court’s precedents and “is not
reasonablydebatable.” Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will
vacate in part and affirm in
part the Board’s January 2010 decisions.
I. FACTS
Mr. Oster served on active duty in the U.S. Navy from June 1985 to April
1988. R. at 1112.
While in service, Mr. Oster injured his back after hitting it against a
ship mooring. R. at 30. Upon
discharge, Mr. Oster reported: “I’ve had trouble with my right leg and
lately with my left leg.” R.
at 1255. A discharge summaryof Mr. Oster’s service medical records also
indicates that he had focal
tendinitis, tibial tuberosity, and patellar strain of the right knee. R.
at 1254.
In January 1993, Mr. Oster filed a claim of entitlement to service
connection for back and
right knee injuries. R. at 1665-69. In April 1993, following a VA medical
examination of Mr.
Oster’s back, a VA regional office (RO) granted entitlement to service
connection for chronic strain
ofthethoracicandlumbarspine,ratedat10%disabling,but deniedentitlementto
serviceconnection
for a right knee disability. R. at 1656, 1658.
Mr. Oster filed a Notice of Disagreement (NOD) with the rating decision in
May 1993,
asserting that his “chronic strain of the thoracic and lumbar spine is
more severe than the ten percent
rating” indicates and that he is entitled to service connection for his
right knee disability. R. at 1636.
VA provided Mr. Oster with a Statement of the Case (SOC) in September 1993 (
R. at 1632-35) and
Mr. Oster filed a timely Substantive Appeal to the Board, appealing the
RO’s disposition of his back
condition and right knee condition claims. R. at 1576-77.
In November 1993, x-rays were taken of Mr. Oster’s lumbar spine. The first
x-ray, taken at
2:15 p.m., showed no evidence of spondylosis or spondylolysthesis, but
noted that spondylolysis
2

should be ruled out.2
R. at 970. The second x-ray, taken at 2:44 p.m., presumably as a result of
the
notation on the first x-ray indicating that spondylolysis should be ruled
out, showed questionable
unilateral spondylolysis on the right at L-5. R. at 968.
In October 1994, the RO issued a rating decision granting entitlement to
service connection
for a right knee condition, rated at 10% disabling. R. at 1518-21. The RO
also denied an increased
rating for Mr. Oster’s chronic thoracolumbar strain, rated at 10%
disabling. Id. Mr. Oster appealed
the RO’s denial of an increased rating for his back condition to the Board,
and the Board also denied
entitlement to an increased rating. R. at 1333-41. Mr. Oster did not
appeal that decision.
In March 2004, Mr. Oster filed a claim for an increased rating of his low
back condition. R.
at 1327-30. He underwent a VA medical examination in May 2004. R. at 974-
76. He filed an
increased rating claim for his right knee condition in August 2004 (R. at
1179) and underwent an
October 2004 VA joints examination (R. at 1157-60).
In December 2004, the RO deniedentitlement to serviceconnection for a left
knee condition,
cervical spine condition, and peroneal nerve palsy of the left leg and
denied entitlement to increased
ratings for a right knee condition and low back strain. R. at 1108-20. Mr.
Oster filed an NOD in
January 2005. R. at 1080-81.
Thereafter, Mr. Oster underwent a December 2005 VA examination for
peroneal nervepalsy
(R. at 826-28), a September 2006 VA examination of the right knee (R. at
747-48), and a February
2007 VA examination of the joints (R. at 684-87). He appealed the December
2004 VA decision
to the Board (R. at 770-91), and in July 2007 he testified before the
Board (R. at 600-21). In
December2007,theBoardremandedMr.Oster’s claimsforfurtherdevelopment,
specificallyforVA
to obtain Social Security Administration (SSA) records; for VA to obtain
private medical records;
for VA to provide an examination of his knees, spine, and left leg
peroneal nerve; and for VA to
undertake any further necessary development. R. at 565-72.
In June 2008, Mr. Oster underwent a VA examination of his low back, right
knee, cervical
Spondylolysis is defined as “dissolution of a vertebra; a condition marked
by platyspondylia, aplasia of the
vertebral arch, and separation of the pars interarticularis.” DORLAND’S at
1754. Spondylosis is defined as “1. ankylosis
of a vertebral joint. 2. degenerative spinal changes due to osteoarthritis
.” Id. Spondylolisthesis is defined as “forward
displacement (olisthy) of one vertebra over another, usually of the fifth
lumbar over the body of the sacrum, or of the
fourth lumbar over the fifth, usually due to a developmental defect in the
pars interarticularis.” Id.
2
3

spine, and peroneal left leg nerve palsy, the results of which are
discussed more thoroughly in the
Court’s analysis. R. at 201-207. In January2010, the Board issued the two
decisions here on appeal.
R. at 3-17, 19-49. The Court will address the appellant’s specific
contentions below.
II. ANALYSIS
A. Lumbosacral Strain
The appellant first argues that the Board relied on an inadequate VA
medical opinion and
provided an inadequate statement of reasons or bases when it denied an
increased disability rating
for his service-connected lumbosacral strain. Appellant’s (App.) Brief (Br
.) at 9-12. Specifically,
the appellant asserts that the Board erroneously relied upon a 2008 VA
examination in which the
examiner concluded that the appellant’s current low back condition, which
required an L4-L5
laminectomy/discectomyin 2007, is a new condition unrelatedtohis service-
connectedlumbosacral
strain. App. Br. at 9-10.
Pursuant to 38 U.S.C. § 5103A, the Secretary’s duty to assist includes,
in appropriate cases,
the duty to conduct a thorough and contemporaneous medical examination. 38
U.S.C. § 5103A; see
Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); see also Green v.
Derwinski, 1 Vet.App. 121, 124
(1991). An examination “is adequate where it is based upon consideration
of the veteran’s prior
medical history and examinations and also describes the disability, if any,
in sufficient detail so that
the Board’s ‘evaluation of the claimed disability will be a fully informed
one.'” Stefl, 21 Vet.App.
at 123 (quoting Ardison v. Brown, 6 Vet.App. 405, 407–08 (1994)); Green,
1 Vet.App. at 124.
It is amedicalexaminer’s responsibilityto provideawell-supportedopinion so
thattheBoard
may carry out its duty to weigh the evidence of record. Nieves–Rodriguez
v. Peake, 22 Vet.App.
295, 304 (2008) (concluding that medical opinion is not entitled to any
weight “if it contains only
data and conclusions”); Stefl, 21 Vet.App. at 124 (stating that VA medical
opinion “must support its
conclusion with an analysis that the Board can consider and weigh against
contrary opinions”). As
provided byVA regulations, “accurate and fullydescriptive
medicalexaminations arerequired, with
emphasis uponthe limitation of activityimposed bythe disabling condition,”
38 C.F.R. § 4.1 (2011),
and “[i]f a diagnosis is not supported by the findings on the examination
report or if the report does
not contain sufficient detail, it is incumbent upon the rating board to
return the report as inadequate
4

for evaluation purposes,” 38 C.F.R. § 4.2 (2011). See Stegall v. West,
11 Vet.App. 268, 270–71
(1998) (remanding matter where VA examination was inadequate under § 4.2);
Hicks v. Brown,
8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical
examination frustrates judicial
review). An examination report may be inadequate if it fails to discuss
something that is necessary.
See 38 C.F.R. § 4.2. Further, the Court has held that “[a]n opinion based
upon an inaccurate factual
premise has no probative value.” Reonal v. Brown, 5 Vet.App. 458, 461 (
1993).
The Board’s determination of whether the Secretary has fulfilled his duty
to assist generally
is a finding of fact that the Court reviews under the “clearly erroneous”
standard of review. See
Nolen v. Gober, 14 Vet.App. 183, 184 (2000); Gilbert v. Derwinski, 1 Vet.
App. 49, 52 (1990) (when
applying the “clearly erroneous” standard, if, after reviewing the record
in its entirety, the Board’s
finding of fact is supported by a plausible basis, “‘the [Court] may not
reverse it even though
convinced that had it been sitting as trier of fact, it would have weighed
the evidence differently.'”
(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985)).
Moreover, the Board must provide a statement of reasons or bases adequate
to enable a
claimant to understand the precise basis for the Board’s decision, as well
as to facilitate review in this
Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995
); Simon v. Derwinski,
2 Vet.App. 621, 622 (1992); Gilbert, 1 Vet.App. at 56–57. To comply with
this requirement, the
Board must analyze the credibilityand probative value of the evidence,
account for the evidence that
it finds to be persuasive or unpersuasive, and provide the reasons for its
rejection of any material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (
1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet.App. 36,
39–40 (1994); Gilbert,
supra.
The Court agrees with the appellant’s arguments that the examiner relied
on an inaccurate
factual premise and failed to discuss potentially important medical
evidence. The examiner stated:
[M]edical records show that he [the appellant] had acute lumbar strain
episodes in
the past with negative imaging by x-ray in 1992 and 1994 and it was not
until more
recently in 2004 that he was found to have anycomplication of his lumbar
spine then
undergoing left L4-L5 diskectomy and excision with laminotomy in 2007. His
degenerative disk disease would not have been caused by resolving acute
lumbar
strain but rather, again, more likely associated with his morbid obesity
and long
sitting as a truck driver. Therefore, his diagnosis for his lumbar spine
also is acute
5

lumbar strains, resolving, with degenerative disk disease secondary to
aging
accelerated by chronic sitting and morbid obesity.
R. at 207. As the appellant notes, the examiner failed to discuss that a
November 1993 x-ray
examination showed “questionable spondylolysis on the right at L/5.” R. at
968. This medical
record conflicts with the examiner’s assessment and, at the very least,
warranted discussion by the
examiner. See Reonal and Stegall, both supra. Accordingly, the Court holds
that this portion of the
2008 VA medical examination is inadequate.
AlthoughtheBoardnotedthattheexaminerfailedto discuss ”
possibleconflictingevidence.”
the Board nevertheless reasoned that the examination was highly probative.
After summarizing the
medical opinion, the Board stated:
The Board notes some possibleconflictingevidencein the record, such as
conflicting
1993 X-rays of the lumbar spine, with cone-down-view X-rays of the lumbar
spine
in November 1993 provided an assessment of “[q]uestionable unilateral
spondylolysis on the right at [L-5],” but a contrasting interpretation the
same day of
oblique-view x-rays of the lumbar spine produced a finding of “no evidence
of
spondylosis or evidence of spondylo[li]sthesis when compared with films [
ín April
1993],” and that examiner assessing “normal oblique views of the lumbar
spine.”
However, the bulk of the examination reports have generally not presented
findings
orconclusionsthatcontradictedorprecludedthefindingsandconclusionsoftheJune
2008 VA examiner.
R. at 32. It appears that, in its strained effort to explain this
conflicting evidence, the Board has
created a false implication that, on re-testing, the x-rays produced
negative results, i.e., evidence that
there was no spondylolysis. The record, however, reveals that the second
set of x-rays taken to rule
out an additional condition produced positive results, rendering false the
2008 examiner’s statement
that complications were not found until 2004. R. at 207.
The Court therefore holds that the Board erred when it relied upon a
medical examination
inadequate for purposes of rating the appellant lumbar spine disability,
that the Board failed to
provide an adequate statement of reasons and bases for its rejection of
relevant x-ray evidence, and
that these deficiencies have prejudiced the appellant. See 38 U.S.C. §
7261(b)(2); Shinseki v.
Sanders, 129 S.Ct. 1696, 1705 (2009) (noting that this Court is required
to “take due account of the
rule of prejudicial error”); see also Nolen and Caluza, both supra.
Consequently, the Court will
vacate that portion of the Board’s decision denying appellant’s claim for
an increased evaluation for
6

lumbosacral strain, currentlyrated at 20% disabling, and remand the
matter for furtherdevelopment.
B. Secondary Service Connection for Left Knee Condition, Cervical Spine
Disorder, and
Peroneal Nerve Palsy
The appellant also argues that the 2008 VA examination was inadequate for
purposes of
evaluating his claims of entitlement to service connection for left knee
disorder, cervical spine
disorder, and peroneal nerve palsy, all as secondary to service-connected
lumbosacral strain. App.
Br. at 12-14. Specifically, he argues that the 2008 medical opinion
erroneouslyconcluded that these
conditions were caused by the appellant’s degenerative disc disease and
not his service-connected
lumbar strain, and the examiner provided an inadequate rationale for his
conclusion. App. Br. at 13.
Secondaryservice connection is awarded for a “disability which is
proximatelydue to or the
result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a) (
2011). In this case, the 2008
VA examiner was asked to render an opinion on whether the appellant’s left
knee, cervical spine, and
peroneal nerve palsy disorders were “caused by or made worse by service-
connected low back
disability.” R. at 201-02. Following physical examination, the examiner: (
1) attributed the
appellant’s cervical spine strain to his obesity; (2) opined that his ”
peripheral nerve injury [ ] is not
associated with a spinal canal stenosis or foraminal stenosis;” and (3)
diagnosed his left knee
disability as iliotibial (IT) band syndrome resulting from his obesity,
inactivity, and career as a truck
driver. R. at 206-07. The examiner then opined that, because the
appellant’s lower back condition
is diagnosed as “acute lumbar strains, resolving, with degenerative disk
disease secondary to aging
accelerated by chronic sitting and morbid obesity . . . . the above
complaints of left knee, peroneal
nerve palsy left side and cervical spine are not made worse by a service-
connected low back
disability on a not at least as likely as not basis.” R. at 207. The
Board’s decision relied heavily on
this examination to deny entitlement to secondaryservice connection for
these claims. See R. at 45-
47.
Although the examiner notes alternative causes of the appellant’s
disabilities, including his
weight and occupation, the examiner’s conclusion that these conditions are
not caused by or made
worse by the appellant’s lumbar spine strain rests on the rationale that
the appellant’s lumbar spine
strains resolved, and that his current back disability is non-service-
connected degenerative disk
7

disease. R. at 207. As discussed earlier, the examiner’s rationale
concerning the appellant’s back
condition was inadequate. Therefore, the examiner’s opinion
regardingwhetherthese conditions are
caused by or made worse by his service-connected lumbar spine condition is
also inadequate.
Because the Board supports its determination largely relying on this 2008
VA examination, the
Board’s decision denying these claims is clearly erroneous. See Nolen and
Gilbert, both supra.
Accordingly, the Court will vacate the Board’s decision and remand these
matters for further
development.
C. Direct Service Connection of the Left Knee
The appellant next argues that the 2008 examination was inadequate with
regard to his claim
of entitlement to direct service connection for left knee disability,
because the examiner (1) ignored
the appellant’s post-service medical records showing complaints of knee
pain beginning in service,
and (2) ignored medical evidence showing degenerative changes in the left
knee. App. Br. at 14-15.
Contrary to the first of these assertions, it appears that the examiner
considered the appellant’s
contention that his left knee pain began in service. R. at 203 (noting
that “he is fairly adamant that
the onset was ‘at the same time in service, I just did not complain until
I got out.'”). However, the
Court agrees with the appellant that the examiner failed to account for
degenerative changes found
in the medical records. First, the examiner incorrectly stated that the
appellant’s medical records do
not show degenerative changes until May2006. R. at 203. However, a March
2004 radiologyreport
shows “degenerative changes of the left knee.” R. at 780. Moreover, the
examiner failed to explain
how these degenerative changes relate to the examiner’s diagnosis of IT
band syndrome. Although
“[a] medicalexaminer need notdiscuss allevidencefavorableto anappellant’s
claimwhenrendering
an opinion,” the examination must contain sufficient detail, must be
accurate, and must be fully
descriptive. Roberson v. Shinseki, 22 Vet.App. 358, 366 (2009), aff’d, 607
F.3d 809 (Fed. Cir.
2010); see 38 C.F.R. §§ 4.1 and 4.2.
Notwithstanding the VA examination’s shortcomings, the appellant has
failed to persuade
the Court that such an error has prejudiced his claim. See Hilkert v. West,
12 Vet.App. 145, 151
(1999) (en banc) (“An appellant bears the burden of persuasion on appeals
to this Court.”), aff’d per
curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); Berger v. Brown, 10 Vet.App.
166, 169 (1997)
(“[T]he appellant . . . always bears the burden of persuasion on appeals
to this Court.”). In this case,
8

the Board determined that, although the appellant asserts that he
developed a left knee disability in
service, the record does not show in-service treatment or treatment for
years after. R. at 46. In short,
the Board denied the claim because the evidence did not show an in-service
disability; the Board did
not rely on the 2008 VA examination’s nexus opinion when considering
direct service connection
for the left knee. Therefore, anyinadequacyin that VA examination did not
prejudice the appellant.
See Sanders, supra.
D. Entitlement to an Increased Evaluation for Right Knee Disorder
The appellant argues that the Board failed to provide an adequate
statement of reasons or
bases for concluding that he does not have additional functional loss in
his right knee due to pain,
weakness, incoordination, fatigue, or loss of endurance caused by flare-
ups. App. Br. at 18-19.
Specifically, the appellant argues that the Board inappropriately relied
on the 2008 examination
report that “contained no assessment of likely limitation of movement
caused by pain during flare-
ups.” App. Br. at 19. The Board’s determinations regarding the degree of
impairment of a disability,
for purposes of rating, are findings of fact, reviewed under the “clearly
erroneous” standard of
review. 38 U.S.C. § 7261(a)(4); see Francisco v. Brown, 7 Vet.App. 55, 57-
58 (1994).
In this case the Board did rely, in part, on the 2008 VA examination to
determine that the
appellant suffers from “some limited pain, a slight limitation of motion
. . . , and dysfunction
including as associated with iliotibial band syndrome.” R. at 37. The
Board found that the
appellant’s disability was most appropriately rated based on limitation of
flexion under 38 C.F.R.
§ 4.71a, Diagnostic Code (DC) 5260. R. at 37. This diagnostic code
provides for a 10% disability
rating where flexion is limited to 45 degrees. The Board explained that,
based on the results of the
June 2008, February 2007, and October 2004 VA examinations, and a
September 2006 magnetic
resonance imaging (MRI), the appellant did not suffer any further
functional loss due to “pain,
weakness,incoordination, fatigue,orloss ofendurance,orbyflare-
upsassociatedwiththeright knee
present to any significantly disabling degree.” Id. Therefore, the Board
continued the appellant’s
10%ratingbecausehis rightkneedisability”ismost closelyapproximated
asequivalentto limitation
of flexion to not less than 45 degrees.” R. at 37.
The appellant’s centralcontention is that the 2008 VA examination
inadequatelyassessed his
functional limitations. In particular, the appellant argues that the
examiner did not adequately
9

consider or assess the likely impact his pain on flare-ups would have on
his functional ability. App. Br. at 18-19.
A functional loss results when ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,or] endurance” is inhibited. 38 C.F.R. § 4.40(2011). When assessing a veteran’s level of disability, the examiner must “express an opinion on whether pain could significantly limit functional ability during flare-ups.” DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). If feasible, limitations of functional ability should be expressed in terms of additional limitation of motion. Id. In Mitchell v. Shineski, the
Court reinforced the principle that:
[when an] examiner failed to address any range-of-motion loss specifically
due to pain and any functional loss during flare-ups, the examination lacks
sufficient detail necessary for a disability rating, and it should have been returned for the required detail to be provided, or the Board should have explained why such action was not necessary. 25 Vet.App. 32, 44 (2011) (holding that “pain alone does not constitute a functional loss under VA regulations” and was not a sufficient basis for a higher disability rating under diagnostic codes that evaluate limitation of range of motion).
In this case, the examiner concluded:
Except as noted in the history and examination above, there is no change
in active or passive range of motion . . . [d]uring repeat motion testing and no additional losses of range of motion of the involved joints or spine due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups. R. at 206. The appellant asserts that the examiner, in so concluding, did not explain his likely limitations caused by pain during flareups. App. Br. at 19. The Court agrees. See R. at 203 (“Flares of increased pain can last minutes to hours and are variable in frequency.”).
Although painful motion is not limited motion for purposes of DC 5260, pain during flare-ups could produce a functional loss that entitles the veteran to additional compensation. See Mitchell, supra.

Although the examiner tersely states that the appellant has no additional loss of range of motion due to flare-ups, the examiner wholly fails to “express an opinion on whether pain could significantly limit functional
ability during flare-ups.” DeLuca v. Brown, 8 Vet.App. at 206. Accordingly,
the Board’s reliance
on this inadequate medical examination was clearly erroneous. See Nolen,
supra.
10

Moreover, the Board does not cite to any evidence in the record providing
an adequate
assessment of the appellant’s functional ability during flare-ups. The
October 2004 and February
2007 VA medical examinations, relied upon by the Board, merely note that
the appellant suffers
from flare-ups without providing the opinion required by DeLuca. See R. at
1157 (noting flare-ups
during cold and rainy weather); R. at 685 (noting that flare-ups occur 3
or 4 times per week, last a
variable amount of time, andresolvewithoutmedicaltreatment). Becausethe
appellant has not been
afforded a medical examination that provides the required opinion
regarding flareups, and because
this has prejudiced his claim, the Court will remand the matter for
further development. See
Sanders, supra.
E. Entitlement to Temporary Total Disability Rating for Convalescence
Lastly, the appellant argues that his request for temporary total
disability for convalescence
after his 2007 L4-L5 laminectomy/discectomy surgery is “inextricably
intertwined” with the other
issues in this case; specifically, that this surgery was related to his
service-connected lumbosacral
strain. App. Br. at 21-22. Therefore, the appellant argues, this issue can
only be resolved after the
proper resolution of his lumbosacral strain claim. App. Br. at 22.
TheBoard’s decisiondeniedentitlementto atemporarytotal
disabilityratingunder38C.F.R.
§ 4.30 solely on the grounds that the Board determined that the evidence
showed that the appellant’s
service-
connectedlumbosacralstrainhadresolvedandwasunrelatedtothelumbardegenerativ
disease condition for which he underwent surgery. R. at 9. However, as
discussed previously, in
determining that the appellant’s current back condition is not related to
his service-connected back
condition, the Board relied on an inadequate medical examination. Because
the Board’s rationale
with regard to the current claim rests upon inadequate evidence, the Board
has clearly erred in its
determination that the appellant was not entitled to a temporary total
disability rating for
convalescence and the Court will remand the matter. See Nolen, supra.
F. Remanded Matters
The Court has remanded the appellant’s claims for: (1) entitlement to an
increased evaluation
for lumbosacral strain; (2) entitlement to secondary service connection
for a left knee condition,
cervical spine disorder, and peroneal nerve palsy; (3) entitlement to an
increased evaluation for a
right knee disorder; and (4) entitlement to a temporary total disability
rating for the convalescent
11

period following his laminectomy/discectomy surgery. On remand, the VA
must provide an
examination for these conditions that complies with VA’s duty to assist.
The appellant is free to
submit additional evidence and raise any remaining arguments to the Board;
the Board is required
to consider them as it provides expeditious treatment of this matter. See
38 U.S.C. § 7112; see also
Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12
Vet.App. 369, 372 (1999)
(per curiam order). Other arguments regarding the probative value of the
May 2004 and July 2004
examinations are best addressed on remand. See Best v. Principi, 15 Vet.
App. 18, 20 (2001) (per
curiam) (“A narrow decision preserves for the appellant an opportunity to
argue those claimed errors
before the Board at readjudication, and, of course, before this Court in
an appeal, should the Board
rule against him.”).

III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal,
those portions of the
Board’s January 8, 2010, decisions denying entitlement to: an increased
evaluation for lumbosacral
strain; secondaryserviceconnection forcervicaldisk disorder,
leftkneedisorder,andperoneal nerve
palsy; an increased evaluation for a right knee disorder; and temporary
total disability rating for
convalescence are VACATED and REMANDEDforfurtherexpeditious proceedings
consistent with
this decision. The Board’s remaining decisions are AFFIRMED.
DATED: December 12, 2011
Copies to:
Sandra W. Wischow, Esq.
VA General Counsel (027)
12

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