Citation Nr: 1803065 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 14-10 898A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating greater than 20 percent for a lumbar spine disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Michael Hoffman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran had active service from July 7, 1998 to August 14, 1998, and from April 4, 2005 to April 29, 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008 and April 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The St. Petersburg, Florida RO now has jurisdiction over the claims. In a final July 2007 Board decision, the claim of entitlement to a rating in excess of 20 percent for chronic lumbosacral strain was denied. The Veteran submitted a statement in support of his claim in September 2008, and this was construed as a new increased rating claim, which the RO denied in a January 2008 rating decision. In an April 2013 rating decision, the issues of entitlement to a rating in excess of 20 percent for chronic lumbosacral strain and service connection for a right knee disability were both denied. In July 2017, the Veteran testified before the undersigned in a videoconference hearing. A transcript of the hearing has been associated with the claims file. The Veteran raised the issue of entitlement to TDIU during the course of the appeal period, to include in correspondence received in May 2017 and at the July 2017 videoconference hearing. As such, the issue is considered part and parcel with the Veteran's pending claim for a higher lumbar spine disability rating and for his right knee disability claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Following his hearing, he submitted a VA Form 21-8940 in support of his TDIU claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's back disability is rated 20 percent disabling under Diagnostic Code 5237 for lumbosacral strain. He contends that the current severity of his back disability warrants an increased evaluation. The Veteran was afforded VA examinations in December 2007, September 2015 and July 2017. In the most recent July 2017 VA examination, the Veteran was able to perform forward flexion to 70 degrees; extension to 15 degrees; bilateral lateral flexion to 20 degrees; and bilateral lateral rotation to 25 degrees. The examiner noted that pain was exhibited, but that it did not result in or cause functional loss, and there was no evidence of pain with weight bearing. The Veteran was not examined immediately after repetitive use over time to determine if pain, weakness, fatigability or incoordination significantly limited functional ability. As a result, the examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. The examiner's reasoning was that the Veteran did not have a recent session of repeated use over time just prior to examination. The examiner also noted that an opinion for range of motion, pain, weakness, fatigability, or incoordination during flare-ups, or when the joints are repeatedly used over a period of time, was not feasible and could not be provided without resorting to mere speculation because the Veteran did not have a flare-up of the back condition during the examination. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), 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. Id. Because this was not done, the claim must be remanded for more complete examination. The Veteran contends that his right knee disability is most likely secondary to his service-connected lumbar spine disability, or in the alternative, due to active service. Most recently at the July 2017 hearing, the Veteran provided testimony that the change in gait and weight distribution, which are caused by his back disability, has also caused his right knee disability. His representative noted that, although the Veteran's knee was aggravated based on the stress of being in active service, the more pertinent connection was secondary service connection based on the Veteran's back disability. The Veteran was afforded a knee VA examination in September 2015. He was diagnosed with a right knee meniscal tear and right knee joint osteoarthritis. The Veteran reported that he believed his knee injury was due to strain on his knee from techniques used that required him to use his knees to lift. He also noted that he had to shift his weight from side to side due to his back pain, and that this caused him to put stress on his knees. The Veteran expressed that he developed pain in his right knee in 2013. He denied trauma or injury to his right knee. The examiner opined that it was less likely as not that his right knee condition was proximately due to or the result of his chronic lumbar strain. The examiner reasoned that review of multiple medical literature, including Up-to-date, had no information that chronic back strain, and/or proper lifting techniques, caused meniscal tear or mild arthritis of the knee. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. at 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate when it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There must be a reasoned medical explanation connecting the expert's observations and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion."). The Board is required to reject an insufficiently detailed medical report. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Because the examiner's opinion was not based upon consideration of the full medical history and did not answer all relevant questions, including reasoning for secondary service connection and aggravation, the matter must be remanded for more complete examination. Regarding the TDIU, as it is dependent upon the degree of impairment from service-connected disabilities, the appeal cannot be fully resolved until it is determined what disability ratings are assigned for the entire period of the appeal. As the issues of entitlement to a rating higher than 20 percent for a back disability and entitlement to service connection for a right knee disability remain on appeal, the issue of entitlement to TDIU cannot fully and fairly be adjudicated until the question of an increased rating for TDIU is settled. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding medical treatment records relevant to his claimed disabilities. After obtaining necessary authorization from the Veteran, all outstanding records should be obtained. 2. After obtaining any outstanding records, the Veteran should be afforded an updated VA examination to determine the current nature and severity of his service-connected lumbar spine disability. Following a review of the claims file, the examiner should address the following: a) The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected lumbar spine disability. All appropriate testing, including range of motion, should be performed. b) The examiner is asked to describe whether pain significantly limits functional ability during flare-ups and after repetitive use, and if so, the examiner must estimate range of motion in degrees during those times. If the examination does not take place during a flare or after repetitive use, the examiner must glean information regarding the severity, frequency, duration and functional loss manifestations during such times from the Veteran, medical records, and other available sources to provide the requested estimations. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. c) The examination should also record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. 3. The Veteran should also be afforded a new VA examination, provided by a new examiner, regarding his right knee disability. The examiner shall note in the report that the entire electronic claims file has been reviewed, to include this Remand. Following a review of the claims file, the examiner should offer the following opinion: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current right knee disability had its onset in service, or is otherwise the result of a disease or injury in active service? b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed right knee disability was caused by or aggravated beyond its natural progression by his service-connected lumbar spine disability? Please note that the examiner must address both causation and aggravation. The examiner must consider and discuss the following in his or her opinion: * The Veteran's contention that the change in gait and weight distribution, which are both caused by his back disability, has also caused his right knee issue. * The Veteran's testimony that the basic stress of being in the Marines and Air Force aggravated his knee. * The Veteran's September 2015 VA examination that diagnosed him with a right knee meniscal tear and right knee joint osteoarthritis. All opinions must be supported by a clear rationale and reasoning behind the opinion. There must be a reasoned medical explanation connecting the expert's observations and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. If it is not possible to provide the requested opinion without resorting to speculation, the examiner should state why speculation would be required in this case. Any missing evidence that would enable the examiner to provide the opinion should be identified. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reports, he or she must provide the medical rationale for doing so. The absence of treatment records is not a legally sufficient reason for rejecting the Veteran's reports, unless the existence of such records would be medically expected. 4. After completing the above actions, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (West 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs