Citation Nr: 1721087 Decision Date: 06/09/17 Archive Date: 06/21/17 DOCKET NO. 09-08 175 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for a low back disability. 2. Entitlement to a disability rating in excess of 10 percent for a stomach disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from April 1979 to June 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction was subsequently transferred to the VA RO in New York, New York. The Board remanded the claims in March 2011 and September 2013. Subsequent to the Board's most recent remand, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for a right hip disability. This is a full grant of the benefits on appeal for the right hip and this appeal is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In August 2011, the Veteran presented sworn testimony during a Travel Board hearing in New York, New York. A transcript of the hearing has been associated with the claims file. The Veterans Law Judge who held the August 2011 hearing is no longer employed at the Board. In May 2013, the Board sent the Veteran a letter asking whether she wished to attend another hearing before the Board. 38 C.F.R. § 20.707 (2016). She replied later that month indicating that she did not wish to attend a new Board hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on her part is required. REMAND With regard to the low back claim, the Veteran was afforded a VA examination to address the current severity of her disability most recently in July 2016. The Board has reviewed the report from this examination and finds it inadequate to decide the claim. Most importantly, the examiner noted that the Veteran had less movement than normal due to ankylosis, adhesions, etc., but later noted that the Veteran did not have ankylosis and provided some range of motion measurements. These findings appear to be inconsistent and must be clarified. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The examiner also failed to obtain active and passive range of motion measurements in weight-bearing and nonweight-bearing in compliance with the recent case from the United States Court of Appeals for Veterans Claims (Court) case, Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). The new examination must also comply with these requirements. With regard to the stomach claim, the examiner provided an addendum opinion in February 2017 indicating that the Veteran's diagnosed hiatal hernia was not due to her service-connected gastritis. However, the opinion did not contain any rationale, nor did the examiner differentiate between the symptoms attributable to the Veteran's service-connected stomach condition and nonservice-connected conditions. See Barr, supra; see also Mittleider v. West, 11 Vet. App. 181, 182 (1998). This claim must also be remanded for a new VA examination that provides a rationale for the conclusion that the Veteran's hiatal hernia is not a part of her service-connected stomach condition and attempt to separate any service-connected from nonservice-connected symptoms. With regard to the TDIU claim, further development and readjudication of the low back and stomach claims may affect the resolution of this claim. The issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The AOJ must first develop and readjudicate the low back and stomach claims before readjudicating the TDIU claim. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of her service-connected low back disability. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. (a) The examiner should describe all symptomatology due to the Veteran's service-connected low back disability, including any associated neurological impairments. All necessary testing must be performed. THE EXAMINER MUST SPECIFICALLY STATE WHETHER THE VETERAN HAS OR HAD ANKYLOSIS AT ANY TIME DURING THE APPEAL PERIOD AND RECONCILE THIS FINDING WITH THE INCONSISTENT FINDINGS OF ANKYLOSIS IN THE JULY 2016 VA EXAMINATION REPORT. (b) The examiner must further comment as to whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and the degree to which any additional range of motion is lost due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups. All limitation of function must be identified. If there is no pain and/or no limitation of function, such facts must be noted in the report. THE EXAMINER SHOULD CONSIDER THE VETERAN'S CONTENTIONS THAT SHE IS UNABLE TO FUNCTION DURING A FLARE-UP. (c) The examiner should state more specifically the extent of the Veteran's limitations in sedentary employment, including the length of time that she could sit or stand at a time, the amount of time she could work overall, and how frequently she would need to change positions. (d) Pursuant to Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of her service-connected stomach disability. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. (a) The examiner should describe all symptomatology due to the Veteran's service-connected stomach disability. All necessary testing must be performed. (b) The examiner should address the February 2017 addendum opinion indicating that the Veteran's hiatal hernia is not a part of her service-connected stomach disability. If the examiner agrees with this opinion, he or she must (1) provide a rationale for that conclusion, and (2) differentiate between symptoms related to the Veteran's service-connected stomach disability and symptoms related to her nonservice-connected hiatal hernia. If the examiner is unable to determine this, he or she should so state. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions, the Veteran's low back and stomach claims should be readjudicated. Thereafter, the TDIU claim should be readjudicated. If any of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and her representative. After they have had an adequate opportunity to respond, all issue(s) properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).