Citation Nr: 18142928 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 14-30 027 DATE: October 17, 2018 REMANDED Service connection for a back condition is remanded. Service connection for a left wrist condition is remanded. Service connection for a right wrist condition is remanded. Service connection for a left shoulder condition is remanded. Service connection for a right shoulder condition is remanded An initial disability rating in excess of 10 percent for right knee sprain is remanded. An increased disability rating in excess of 10 percent for left knee strain/sprain (previously evaluated as internal derangement of the left knee with anterior cruciate ligament tear under DC 5259) is remanded.   REASONS FOR REMAND The Veteran had active service from September 2000 to January 2008. The case is on appeal from December 2013 and February 2014 rating decisions. In May 2016, the Veteran testified at a Board hearing. The Board remanded this matter in November 2016 and again in May 2018. 1. Service connection for a back condition is remanded. 2. Service connection for a left wrist condition is remanded. 3. Service connection for a right wrist condition is remanded. 4. Service connection for a left shoulder condition is remanded. 5. Service connection for a right shoulder condition is remanded. Issues 1-5 are remanded for new VA examinations as there was not substantial compliance with the Board’s last remand for an examination. The Board remanded the claims in May 2018 because a February 2017 VA examination was inadequate for multiple reasons. One of the primary reasons was the VA examiner’s comment that “further comprehensive physical testing, laboratory tests, and/or satisfactory medical evidence within the claim’s file” was needed. The Board stated to the examiner that “it is imperative that the examiner conduct all needed comprehensive physical testing, laboratory testing, and/or other diagnostic testing needed.” Upon remand, a different VA examiner evaluated the Veteran in May 2018. This VA examiner initially commented that “[a]ll needed comprehensive physical testing, laboratory testing, and/or other diagnostic testing is complete. No further diagnostics or consultations are required.” Yet, later in the examination report, the examiner commented that “[t]he Veteran requires a proper work-up for potential causes, including infectious diseases and rheumatological conditions, before any diagnosis or medical opinion can be rendered.” These two statements cannot be reconciled. Especially since it appears that no work-up of any sort was undertaken. The examiner stated that “[r]eview of the Veteran’s available medical records shows that he has never been formally evaluated for these complaints.” The examiner did not explain why this work-up and formal evaluation was not undertaken as part of the VA examination process. As such, the May 2018 VA examination does not substantially comply with the Board’s remand. See Stegall v. West, 11 Vet. App. 268 (1998); see D’Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). 6. An initial disability rating in excess of 10 percent for right knee sprain is remanded. 7. An increased disability rating in excess of 10 percent for left knee strain/sprain (previously evaluated as internal derangement of the left knee with anterior cruciate ligament tear under DC 5259) is remanded. Issues 6-7 are remanded for a new VA examination. The Board last remanded these claims in May 2018 because the VA examinations of record were not compliant with Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). The Board instructed the examiner as follows: “if there are flare-ups and the examination is not conducted during a flare-up, the examiner should estimate the functional loss of the flare-ups. If this cannot be done, it should be explained why that is so.” Upon remand a VA examination was conducted in May 2018. The VA examiner found that pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability with flare-ups and repeated use over time. The examiner marked that this could not be described in terms of range of motion. In explanation, the VA examiner wrote: “Review of the evidence and imaging, along with results of the current examination, do support the Veteran’s contention of flare ups and of repeated use over time.” The Board notes that this does not answer the question asked. Thus, the VA examination informs the Board that the Veteran had additional functional limitations with flare-ups and repeated use over time. The VA examiner stated that loss of motion in degrees could not be given, but did not explain why. Thus, this examination does not comply with the Board’s last remand directives. As such, a new VA examination is needed. See Stegall, 11 Vet. App. at 268; D’Aries, 22 Vet. App. at 104-05. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate Rheumatologist to determine the nature and etiology of back, shoulder, or wrist conditions. If a rheumatologist is not available, the examination should be conducted by an examiner qualified to perform Persian Gulf War examination. In no event, should either of the prior two VA examiners participate. The examiner must address each of the following: (a.) The examiner must provide a diagnosis for any conditions found extent. In doing so, the examiner must conduct all necessary testing, unless it can be explained why such testing is not medically necessary. (b.) If a current diagnosis is not present, the examiner should address whether the Veteran nevertheless has any functional impairment in the back, shoulders, or wrists? (c.) Then, the examiner should explain whether the Veteran’s disability pattern is: (1) an undiagnosed illness (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis (d.) If, after examining the Veteran and reviewing the claims file, the examiner determines that the Veteran’s disability pattern is either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. (e.) If no, is it at least as likely as not that any diagnosed disorder—or functional impairment associated with the back, shoulders, or wrists—had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service? In answering these questions, the examiner is asked to consider the statements from the Veteran indicating that symptoms started during service. The examiner is asked to explain why his statements make it more or less likely that a condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should only rely on silence in the medical records if it can be explained either (a) why the silence in the record can be taken as proof that the symptom did not occur, (b) why the fact would have normally been recorded if present, or (c) why absence in the medical records is medically significant. 2. Schedule the Veteran for a VA examination to assess the severity of the service-connected right and left knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel