Citation Nr: 1046972 Decision Date: 12/16/10 Archive Date: 12/22/10 DOCKET NO. 06-34 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a right shoulder disability, secondary to a lumbar strain with degenerative disk and joint disease. 2. What evaluation is warranted for a lumbar strain with degenerative disk and joint disease? 3. Entitlement to service connection for memory loss secondary to medication for a lumbar strain with degenerative disk and joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to November 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). The issues of entitlement to service connection for a cervical disorder and entitlement to a total disability rating based on individual unemployability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to an increased rating for the lumbar spine disability and entitlement to service connection for memory loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Right shoulder capsulitis and tendonitis are aggravated by a lumbar strain with degenerative disk and joint disease. CONCLUSION OF LAW Right shoulder capsulitis and tendonitis are aggravated by lumbar strain with degenerative disk and joint disease. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & 2010); 38 C.F.R. §§ 3.159, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. The Veteran, a retired chiropractor, asserts that his right shoulder disorder is secondary to the service-connected lumbar disability due to the use of a cane in his right hand for the service-connected disorder. The appellant, because of his medical background, is competent to opine the etiology of his right shoulder disability. 38 C.F.R. § 3.159; Pond v. West, 12 Vet. App. 341, 345 (1999). In February 2009 a VA examiner, a physician, stated that it is reasonable to assume that using the cane in the right hand for many years could have aggravated his right shoulder disability. Thus, there is competent medical evidence showing that the right shoulder disorder was aggravated by the lumbar disability. As the preponderance of the evidence is not against finding that the right shoulder disorder was aggravated by the lumbar disability, service connection is in order under this limited theory of entitlement. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To this extent, the benefit sought on appeal is allowed. ORDER Entitlement to service connection for right shoulder capsulitis and tendonitis secondary to a lumbar strain with degenerative disk and joint disease by means of aggravation is granted. REMAND A November 2007 VA neuropsychological report contains a diagnosis of cognitive disorder not otherwise specified and reflects that the Veteran has been taking opiates and benzodiazepines, both of which can cause memory impairment. The appellant has been taking opiates for pain. A January 2008 VA treatment record shows that the VA psychologist who interpreted the neuropsychological testing opined that his cognitive impairments were secondary to chronic pain, depression, and medication side effects. The psychologist also noted, however, that the Veteran's cognitive impairment may an early sign of dementia. In light of this evidence, a VA examination is necessary for the adjudication of the claim. The RO granted entitlement to service connection for a lumbar strain effective August 12, 2003. That date is prior to September 26, 2003, the effective date for the current criteria for evaluating general diseases and injuries of the spine. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). Hence, the regulation as it existed prior to the change is applicable to the appellant's claim for the periods prior to and after the dates of the respective regulatory changes. The revised regulations are only applicable from the effective dates of the change forward. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Although the RO included the former Diagnostic Code 5292 (limitation of motion of the lumbar spine) in an October 2006 statement of the case, the RO did not provide the Veteran the former Diagnostic Code 5295 (lumbosacral strain). VA must provide the appellant this Diagnostic Code because that code is applicable to his increased rating claim. The Board notes that at the September 2003 VA examination "true" (sic) lumbar flexion was to 45 degrees. At the May 2005 VA examination lumbar forward flexion was to 60 degrees. A June 2006 VA outpatient treatment record, however, revealed that forward lumbar flexion was to only 30 degrees. At the February 2009 VA examination, lumbar forward flexion was to 40 degrees. The RO must consider these limitations of flexion in determining whether an increased rating is warranted. Fenderson v. West, 12 Vet. App. 119 (1999) (Multiple (staged) ratings may be assigned for different periods of time during the pendency of the appeal.) At his July 2010 hearing, the Veteran reported that he was still being treated at the VA medical center in Reno, Nevada, for his lumbar disorder. The RO last obtained treatment records from that facility in October 2009. Hence, more recent records must be secured from that facility. Finally, the Veteran testified that his lumbar disability had worsened since his last VA examination in February 2009. The United States Court of Appeals for Veterans Claims (the Court) has held that when a veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and a veteran's contention that the pertinent disability had increased in severity). Therefore, a current examination is necessary for this claim. Accordingly, the case is REMANDED for the following action: 1. The RO must provide the Veteran with all pertinent regulations governing his lumbar disorder which were in effect prior to September 26, 2003, to specifically include 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). 2. The RO must obtain any treatment records from the Reno, Nevada, VA Medical Center since October 2009. Any such records should be associated with the Veteran's VA claims folder. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, the Veteran should be afforded a VA orthopedic examination by a physician. The claims folder and a copy of this REMAND must be made available to the examiner. In accordance with the latest AMIE worksheets for rating spine disabilities, the examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to a lumbar strain with degenerative disk and joint disease. The examiner must address the extent to which the Veteran's lumbar disorder affects his ability to work. A complete rationale for any opinion offered must be provided. The VA examiner must append a copy of his or her curriculum vitae to the examination report. 4. The RO must also arrange for a psychiatric examination, to be conducted by a physician, to determine the nature and etiology of any diagnosed cognitive disorder. The claims folder and a copy of this REMAND must be made available to the examiner. The physician examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that the use of medication to treat pain associated with the Veteran's lumbar strain with degenerative disk and joint disease, or right shoulder capsulitis causes or aggravates any current cognitive disorder. A complete rationale for any opinion offered must be provided. In preparing his or her opinion, the examining physician must note the following terms: * "It is due to" means 100 percent assurance of relationship. * "It is at least as likely as not" means 50 percent or more. * "It is not at least as likely as not" means less than a 50 percent chance. * "It is not due to" means 100 percent assurance of non relationship. If the examining physician is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examining doctor must specifically explain why the cause of any current psychiatric disorder is unknowable. The VA examiner must append a copy of his or her curriculum vitae to the examination report. 5. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2010). 6. After the development requested is completed, the RO should review all examination reports to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once 7. The RO must contact the VA Regional Counsel in San Francisco, California, and request that office to provide a written opinion addressing whether California law permits chiropractors to diagnose and treat memory disorders. Appropriate citation to controlling authority should be provided. 8. Thereafter, the RO must readjudicate the claims of entitlement to service connection for memory loss and an increased rating for a lumbar disability, with consideration of the old and new criteria for rating lumbar strain. The RO must determine whether the findings of limited flexion presented above in the remand warrant an increased evaluation. If any benefit is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs