Citation Nr: 1751615	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  11-25 676	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for headaches, to include as secondary to service-connected disabilities.

3.  Entitlement to service connection for sciatica, bilateral lower extremities, to include as secondary to service-connected disabilities.

4.  Entitlement to service connection for a right upper extremity condition, to include as secondary to service-connected disabilities.

5.  Entitlement to service connection for carpal tunnel syndrome of the bilateral wrists, to include as secondary to a service-connected condition.

6.  Entitlement to service connection for tinnitus.

7.  Entitlement to service connection for anxiety and depression (claimed as a psychiatric disorder).

8.  Entitlement to service connection for post-traumatic stress disorder.

9.  Entitlement to an evaluation in excess of 20 percent before March 24, 2016 and in excess of 40 percent thereafter for a lumbar spine disability.

10.  Entitlement to an evaluation in excess of 20 percent for a right shoulder disability.

11.  Entitlement to an evaluation in excess of 20 percent for a cervical spine disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Fisher, Associate Counsel


INTRODUCTION

The Veteran had honorable active duty service with the Army from February 1992 to October 1999.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The Veteran filed a Notice of Disagreement in August 2010.  A Statement of the Case (SOC) was issued in August 2011.  The Veteran filed a Substantive Appeal in September 2011.  

In March 2017, the RO issued a rating decision increasing the evaluation of the right shoulder disability to 20 percent effective March 16, 2009, granting entitlement to service connection for surgical scars of the right shoulder, and granting entitlement to service connection for tinnitus.  In an April 2017 rating decision, the RO granted, in relevant part, entitlement to service connection for an acquired psychiatric disorder, to include depression and post-traumatic stress disorder, and increased the evaluation for the lumbar spine disability to 40 percent effective March 24, 2016.  These grants of entitlement to service connection for tinnitus, and an acquired psychiatric disorder, to include depression and post-traumatic stress disorder, represent a full grant of benefits sought on appeal, and are thus no longer before the Board.

In August 2017, the Veteran withdrew his request for a Travel Board hearing before a Veterans Law Judge, and requested that the case be adjudicated on the merits.

The issues of entitlement to service connection for headaches, sciatica, a right upper extremity condition, and carpal tunnel, as well as entitlement to an increased evaluation for a cervical spine disability, a right shoulder disability, and a lumbar spine disability prior to March 24, 2016 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran does not have bilateral hearing loss for VA purposes.

2.  Since March 24, 2016, the Veteran's lumbar spine disability has not manifested with forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.





CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1113, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).

2.  Since March 24, 2016, the criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5242 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VCAA

Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.  Service Connection

Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service.  38 U.S.C.A. §§ 1113 (West 2014).  A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease.  38 C.F.R. § 3.303 (2017); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465.  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

Bilateral Hearing Loss

The Veteran contends that he is entitled to service connection for bilateral hearing loss.

For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  

Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017).

On the Veteran's July 1992 auditory examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
5
10
10
LEFT
15
10
5
10
15

Speech recognition was not assessed at the time of this examination.

On the authorized audiological evaluation in March 1999, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
20
20
20
LEFT
35
35
20
25
20

Speech recognition was not assessed at the time of this examination.

The Veteran's post-service treatment records from a VA Medical Center (VAMC) indicate essentially normal hearing in September 2009.

The Veteran was afforded a VA examination in November 2009.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
5
5
20
LEFT
20
20
15
15
15

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.  Hearing was noted to be within normal limits according to VA guidelines.

The Board finds that the Veteran does not have a current diagnosis of bilateral hearing loss for VA purposes.  As previously noted, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 dB or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  While the Veteran's audiological evaluations in service indicate some mild hearing loss, the Veteran's November 2009 VA examination results clearly indicate that he does not meet any of these qualifications.  This is supported by the August 2009 VAMC audiological assessment that similarly indicated hearing within normal limits for VA purposes.  Without evidence of a current disability related to service, service connection may not be granted. 

The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).  There is also no evidence of a hearing loss disability for VA purposes at any point during the claims period or shortly before.  See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Therefore, entitlement to service connection for bilateral hearing loss is denied. 

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim of service connection for bilateral hearing loss must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.



III.  Increased Ratings

Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2017).  The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017).  However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered.  In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2 (2017).  VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disabilities must be reviewed in relation to their entire history.  38 C.F.R. § 4.1.  VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity.  38 C.F.R. § 4.10.  Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion.  Functional impairment may be due to pain, including during flare-ups, or from repetitive use.  Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011).  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465.  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

Lumbar Spine Disability Since March 24, 2016

As the April 2017 rating decision was not a full grant of the schedular maximum evaluation for a lumbar spine disability, the evaluation of 40 percent since May 24, 2016 remains on appeal.

The Veteran's lumbar spine disability is presently rated under Diagnostic Codes 5010-5242, which indicates traumatic arthritis and degenerative arthritis of the spine.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating.  38 C.F.R. § 4.27 (2017).  

The criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine, pursuant to which limitation of motion and other factors are evaluated. 

Under General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more body height.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis.  A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankyloses of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankyloses of the entire spine.  These criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  See 38 C.F.R. § 4.71a

Associated objective neurological abnormalities are evaluated separately.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1.  Unfavorable ankylosis is a condition in which the spine is fixed in flexion or extension and the ankylosis results in one or more limitations such as limited line of vision, restricted breathing, gastrointestinal symptoms, or neurological symptoms due to nerve root stretching.  Id., Note 5. 

Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, an incapacitating episode is defined as a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician.  The schedule provides for a 60 percent rating when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months.  A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months.  A 10 percent rating is warranted when there are incapacitating episodes of having a total duration of at least one week, but less than two weeks during the past 12 months.

Normal ranges of motion for the lumbar spine are 90 degrees flexion, and 30 degrees extension, lateral flexion, and rotation.  See 38 C.F.R. § 4.71a.

When evaluating musculoskeletal disabilities, a higher rating may be granted in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  Although pain may cause functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011), quoting 38 C.F.R. § 4.40.

After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 40 percent since March 24, 2016.

The Veteran was afforded a VA examination in March 2016 to assess his lumbar disability on appeal  The examiner noted a diagnosis of degenerative joint disease of the lumbar spine, for which he was already service-connected.  The Veteran reported chronic daily pain in the lower back that was worsened by repetitive bending.  He also stated that flare ups were triggered by bending activities and weather changes.  Flare ups were reported as three times per week with an average duration of up to a day and severity of 8-10 on a scale of 0-10.  He also reported functional impairment by pain, headaches, limited motion, and stiffness.  Forward flexion was measured at 45 degrees, and decreased to 25 degrees on repetitive use testing.  Extension was measured to 20 degrees, and decreased to 15 degrees on repetitive use testing.  There were no muscle spasms or guarding, but the examiner found localized tenderness that did not result in abnormal gait or spinal contour.  The examiner did not kind ankylosis or IVDS upon examination.  

After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran is not entitled to an evaluation in excess of 40 percent since March 24, 2016.

While the examiner could not say if pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time or flare ups, the Veteran's lay statements provided sufficient information regarding limitations during flare ups.  The Veteran reported pain, limited motion, and stiffness that caused functional limitation.  He did not, however, report the inability to move the thoracolumbar or entire spine at any time.  This severe restriction of motion is required in order to warrant a higher rating under the Diagnostic Code.  In order to grant a 50 percent evaluation for a lumbar spine disability, there must be unfavorable ankylosis of the entire thoracolumbar spine.  In order to grant a 100 percent evaluation, the entire spine must have unfavorable ankylosis.  At no point does the Veteran assert symptoms of this severity in the examination.  He similarly does not report incapacitating episodes, or other symptomatology that would equate to such a severe impairment as to rise to the level of unfavorable ankylosis. 

While the Veteran is certainly competent to speak to the severity of symptoms associated with his lumbar spine disability, the credible medical evidence of record indicates that, in this period, the Veteran's disability manifested primarily with loss of range of motion to 25 degrees of forward flexion after repetitive use, and pain, limited motion, and stiffness that caused functional limitation.  There are no contrary medical records within this period of time.  

Even in resolving all reasonable doubt in favor of the Veteran, the maximum evaluation to which he is entitled for this period remains 40 percent for limitations of his range of motion of the thoracolumbar spine.  He would not be entitled to the higher rating of 50 percent without unfavorable ankylosis.  As the medical evidence of record rules out IVDS as a diagnosis in this time frame, it is inappropriate to consider a rating under this code.

The Board places more probative weight on the medical evidence of record establishing that the Veteran's symptoms warrant a 40 percent evaluation.  As the probative, credible evidence of record weighs against a finding of an increased initial evaluation, the benefit of the doubt doctrine does not apply.  A rating in excess of 40 percent must be denied.


ORDER

1.  Entitlement to service connection for bilateral hearing loss is denied.

2.  Entitlement to an evaluation in excess of 40 percent since March 24, 2016 is denied. 	
REMAND

Unfortunately, remand is necessary to adjudicate the remaining issues on appeal.

Examinations were not provided to assess the etiologies of the Veteran's claimed sciatica, right upper extremity condition presenting with numbness and tingling, and carpal tunnel syndrome.  In September 2002, VAMC records indicate that the Veteran complained of radiating pain through his right inner thigh caused by service-connected back pain.  In the April 2010 VA examination, the examiner noted a history of right leg numbness associated with his lumbar pain.  In April 1997 while still in service, the Veteran reported tingling and numbness in his third and fifth digits following right shoulder surgery.  In May 2002, the Veteran reported pain and numbness in the right shoulder and arm.  In August 2009, VAMC records reflect complaints of cervical radicular symptoms.  Finally, a January 2004 private medical record diagnosed the Veteran with carpal tunnel syndrome with a nerve conduction study.  The Veteran reported that the symptoms started when he was a mechanic in the Army.  McLendon v. Nicholson, 20 Vet. App. 79 (2006), sets a low bar to afford an examination for a claimed service-connected condition.  The ongoing reports of symptomatology either beginning in service or associated with a service-connected disability is a sufficient indication that the conditions are related to service.  As such, examinations must be afforded on remand.

While the Veteran's claim was in remand status, the United States Court of Appeals for Veterans Claims (Court) issued a new precedential decision which also requires that certain claims also be remanded.  In Sharp v. Shulkin, 29 Vet. App. 26 (2017) , the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. "  Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves."  Sharp, 29 Vet. App. at 34.  The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups."  Id. at 10.  

The examinations assessing the Veteran's cervical spine disability, right shoulder disability, and lumbar spine disability prior to March 24, 2016 were insufficient for adjudicative purposes under the Court's guidance in Sharp.  The Veteran's April 2010 examination assessing his lumbar spine did not test repetitive use, and did not explain the omission.  That examination also did not discuss functional loss due to the DeLuca factors.  In the Veteran's March 2016 examinations, the examiners stated that they could not determine if the DeLuca factors significantly limited functional ability with repeated use over time or during flare ups without resorting to speculation.  No rationale was provided.  Instead, the examiners stated that the Veteran was not examined after repetitive use over a period of time or during a flare up.  Under Sharp, remand is necessary to obtain a more thorough opinion regarding functional limitations of these conditions.

Finally, the Veteran's claim of entitlement to service connection for headaches must also be reexamined.  The Veteran's October 2011 and January 2013 headache examinations did not present a thorough rationale for the conclusions drawn, and did not address the Veteran's lay evidence regarding onset.  The examinations also did not address secondary service connection despite the Veteran's contention that his headaches stem from his service-connected neck and shoulder disabilities.  As such, these examinations are insufficient for adjudicative purposes.  Remand is necessary to obtain a more thorough opinion regarding both direct and secondary service connection on remand.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding VA treatment records that are not already associated with the claims file.  Make as many requests as are necessary to obtain relevant records, and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile.  If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e).

2.  Once the aforementioned development is complete, obtain a retrospective opinion to assess the nature and severity of the Veteran's lumbar spine disability between March 16, 2009 and March 23, 2016.  If deemed necessary, an examination may be scheduled.  Consider the Veteran's reported symptomatology and functional loss during flare-ups and, if possible, offer range of motion estimates based on that information for all assessed disabilities.  If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information.  

3.  Once development in instruction 1 is complete, schedule the Veteran for VA examination(s) with an appropriate clinician(s) for his sciatica, right upper extremity condition, carpal tunnel, cervical spine disability, and right shoulder disability.  The entire claims file and a copy of this remand must be made available to the examiner(s) for review, and the examiner(s) must specifically acknowledge receipt and review of these materials in any reports generated.  

The examiner(s) must consider the Veteran's lay statements regarding onset, observable symptoms, and functional limitations for each disability.

The examiner(s) must provide an opinion as to the following:

(a)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's sciatica began during active service, is related to an incident of service, or began within one year after discharge from active service.

(b)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's sciatica was proximately due to or the result of his service-connected disabilities.

(c)  Is it at least as likely as not (50 percent or greater probability) that any identified right upper extremity condition manifesting as tingling and numbness began during active service, is related to an incident of service, or began within one year after discharge from active service.

(d)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's right upper extremity condition was proximately due to or the result of his service-connected disabilities.

(e)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's carpal tunnel syndrome began during active service, is related to an incident of service, or began within one year after discharge from active service.

(f)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's carpal tunnel syndrome was proximately due to or the result of his service-connected disabilities.

(g)  Assess the nature and severity of the Veteran's cervical spine disability.  Request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information for all assessed disabilities.  If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information.  If possible, provide a retrospective opinion regarding the severity of the cervical spine disability since March 16, 2009, to include VA examinations, as well as VAMC and private treatment records.  

(h)  Assess the nature and severity of the Veteran's right shoulder disability.  Request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information for all assessed disabilities.  If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information.  If possible, provide a retrospective opinion regarding the severity of the cervical spine disability since March 16, 2009, to include VA examinations, as well as VAMC and private treatment records.  

The examiner(s) must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner(s) must state this and provide a rationale for such conclusion. The examiner should also identify what additional information or evidence (if any) may allow for a more definitive opinion.  

3.  Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal.  If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs