Citation Nr: 1804638 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 10-00 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a disability characterized by memory problems, as secondary to service-connected multiple sclerosis (MS). 2. Entitlement to a rating in excess of 20 percent after September 19, 2013, for degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Air Force from July 1983 to March 2008. He is the recipient of the Meritorious Service Medal, the Air Force Commendation Medal with two oak leaf clusters, the Air Force Achievement Medal with one oak leaf cluster, and the Air Force Good Conduct Medal with seven oak leaf clusters. This matter originally came to the Board of Veterans' Appeals (Board) from May 2008 and May 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Following a joint motion for partial remand granted by the United States Court of Appeals for Veterans Claims (Court) in August 2015, this matter was remanded by the Board in May 2016. A Supplemental Statement of the Case (SSOC) was issued in August 2016. In August 2017, VA notified the Veteran that his appeal had been certified to the Board. In an August 2017 letter, the appellant's attorney, who has been representing the appellant for approximately seven years and who has been copied on all correspondence in the appeal, asked the Board, "[d]ue to numerous claims on appeal for this veteran," to clarify the issues on appeal. He also requested that the Board allow the full 90 days from the date of the certification letter prior to deciding the claim, presumably for the purpose of allowing him the opportunity to submit additional evidence and argument in support of the appeal. In an October 2017 letter, the Board advised that in addition to the issues listed on the cover page of this decision, the issue of entitlement to service connection for a left ankle sprain had also recently been transferred to the Board. The latter issue, however, was pending intake actions to docket the appeal. It was explained that the Board reviews cases in docket order which is based upon the date that the VA Form 9 was filed. As the Board explained in that letter, the issue of entitlement to service connection for a left ankle sprain has not yet been docketed; thus, such will not be addressed in this decision. The appellant's attorney did not respond to the Board's October 2017 letter. Indeed, despite his August 2017 request that the Board wait 90 days before deciding the appeal, he has submitted no evidence or argument or otherwise communicated with VA regarding the instant appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In May 2016, the Board remanded the issue of entitlement to service connection for memory problems as secondary to service-connected multiple sclerosis. The Board determined that a June 2012 VA medical opinion that the appellant's MS impacted his work as he had a hard time focusing and doing complex computations required clarification, particularly whether any memory problems due to MS can be distinguished from those attributable to the appellant's service-connected psychiatric disability or whether he had a separate memory problem or cognitive disorder secondary to a service-connected disability. The Board directed the RO to obtain an addendum opinion from the June 2012 VA examiner, if available. If such examiner was unavailable, the appellant was to be scheduled for a VA examination by a psychiatrist or other appropriate medical specialist. The record indicates that the June 2012 VA examiner was not available to offer an addendum opinion because such examiner was no longer with VA Compensation and Pension. Although the RO obtained an addendum opinion from a VA psychologist in June 2016, the ordered examination was not conducted. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, while the Board regrets the further delay, the issue must again be remanded for compliance with the Board's remand directives. Also while the matter was in remand status, the appellant was afforded a VA examination in June 2016 to determine the severity of his lumbar spine disorder. He reported flare-ups, which occurred with weather changes and sometimes "sleeping wrong." However, the examination was not conducted during a flare-up. The examiner stated that the examination was consistent with the appellant's statements describing functional loss during flare-ups, but was unable to say, without mere speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because "an examiner would need to be present to determine this objectively." Essentially, the examiner reported an inability to describe functional loss during flare-ups in terms of additional range of motion loss was not possible because the examination was not conducted during a flare-up. However, the United States Court of Appeals for Veterans Claims (Court) held in Sharp v. Shulkin, 29 Vet. App. 26 (2017), that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if so, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Id. at 32. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). Although the March 2017 contracted examination report contains some information regarding the severity of the appellant's flare-ups, no estimation was provided regarding loss of range of motion during flares. Rather, the examiner noted that such an opinion regarding functional loss during flare-ups was not feasible because an examiner would need to be present to measure range of motion during a flare-up. In light of Sharp, a new examination is necessary. In Ardison v. Brown, 6 Vet. App. 405, 408 (1994), the Court held that, in a case where a worsened condition lasted weeks or months, VA may not rely on a medical examination performed during the inactive stage of veteran's fluctuating condition. However, in Voerth v. West, 13 Vet. App. 117, (1999), the Court found that where a veteran's disability, in its recurrent state, did not affect his or her employability and the worsened condition did not last more than a few days, an examination during a flare-up was not required. As the evidence of record suggests that flare-ups are of a limited duration, it does not appear feasible to examine the appellant during a flare-up. Rather, the examiner should glean all necessary information from the appellant during the examination in order to offer an opinion on flare-up functional loss in terms of range of motion. Accordingly, the case is REMANDED for the following action: 1. The appellant should be afforded a VA medical examination to clarify whether the memory problems due to MS noted during the June 2012 VA medical examination can be distinguished from memory problems attributable to the Veteran's service-connected psychiatric disability or whether he has a separate memory problem or cognitive disorder. After examining the appellant and reviewing the record, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (50 percent probability or greater) that the appellant has a disability manifested by memory problems as a result of service or a service-connected disability that can be distinguished from memory problems attributable to his service-connected psychiatric disability. In providing the requested rationale, the examiner should address the relevant evidence of record, to include the June 2012 VA medical examination report noting that the appellant's MS impacted his work as he had a hard time focusing and doing complex computations. 2. Schedule the appellant for an appropriate examination to clarify the severity of his service-connected lumbar spine disability. Access to the appellant's electronic VA claims file should be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the record, the examiner should specifically delineate all pathology and symptoms attributable to the service-connected lumbar spine disability. The examination report should include the range of motion of the lumbar spine in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing, as required by 38 C.F.R. § 4.59. If any such testing cannot be performed on the joint at issue, he or she should state so and provide an explanation. Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. A clear rationale for all opinions must be provided. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the appellant, to what extent, if any, such flare-ups affect functional impairment. The examiner is informed that the Court has held that simply stating that description in terms of additional range of motion loss is not possible because the examination was not conducted during a flare-up is inadequate. 3. If upon completion of the above action, any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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. §§ 5109B, 7112 (2012). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2017). Department of Veterans Affairs