Citation Nr: 18145059 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 14-40 321 DATE: October 26, 2018 ORDER Service connection is granted for insomnia secondary to pain from service-connected hip and back disabilities. An increased rating of 40 percent (but no higher) is granted for the Veteran’s service-connected thoracic spine (upper back) disability, subject to the laws and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Service connection for a neck disability, to include as secondary to service-connected back and hip disabilities, is remanded. Service connection for a left knee disability, to include as secondary to service connected back and hip disabilities, is remanded. Service connection for a right knee disability, to include as secondary to service connected back and hip disabilities, is remanded. The issue of entitlement to an increased rating for a service-connected right hip disability is remanded. Service connection for a chest disability, to include as secondary to service-connected back and hip disabilities, is remanded. Service connection for left upper extremity tingling, to include as secondary to service-connected back and hip disabilities, is remanded. Service connection for right upper extremity tingling, to include as secondary to service-connected disabilities, is remanded. Service connection for left foot arthritis and numbness, to include as secondary to service-connected back and hip disabilities, is remanded. Service connection for right foot arthritis and numbness, to include as secondary to service-connected back and hip disabilities, is remanded The issue of entitlement to a separate rating for bladder dysfunction secondary to the Veteran’s service-connected back disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Board of Veterans’ Appeals (Board) finds that the Veteran’s March 2018 hearing testimony, supported by medical records showing both treatment for a sleep disorder and the Veteran’s persistent reports of severe pain associated with service-connected disabilities, is at least evenly balanced for and against (in “relative equipoise”) a finding that service connection is warranted for insomnia as secondary to chronic pain from service-connected disabilities. 2. The Veteran’s service-connected back disability is not shown to cause unfavorable ankylosis of the entire thoracolumbar spine. 3. During and after service, the Veteran worked as a nuclear medicine and x-ray technician. In written statements and during the March 2018 Board hearing, she explained that her service-connected back and hip disabilities prevent her from working. The medical evidence shows significant functional impairment associated with these disabilities including limits on standing, walking, and lifting. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and finds that the evidence is at least evenly balanced for and against (in “relative equipoise”) a finding the Veteran’s service-connected disabilities have rendered her unable to maintain substantially gainful employment during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for insomnia, secondary to pain associated with service-connected disabilities, have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. An increased rating of 40 percent, but no higher, for the Veteran’s service-connected back disability is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 3. The criteria for TDIU (on an extraschedular basis) have been met during the entire appeal period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16 (2017); see Thun v. Peake, 22 Vet. App. 111 (2008) and Anderson v. Shinseki, 22 Vet. App. 423 (2009) (implicitly overruling the holding in Bowling v. Principi, 15 Vet. App. 1 (2001), prohibiting the Board from granting an extraschedular TDIU in the first instance): see also See Wages v. McDonald, 27 Vet. App. 233, 239) (Kasold, J., concurring) (citing Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), disagreeing with Bowling and holding that the Board may award extraschedular TDIU in the first instance). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to March 1985. These matters are before the Board on appeal from June 2010, May 2013, and February 2014 rating decisions. In March 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. During the hearing, the Veteran testified regarding eight issues for which there was a timely notice of disagreement (NOD) but no VA Form 9 (substantive appeal). Because the Veteran filed a timely NOD to the May 2013 rating decision denying these claims, the Board is taking jurisdiction over these claims and will address them here. See Manlicon v. West, 12 Vet. App. 238, 240 (1999) (stating that a NOD is a jurisdiction-conferring document that required remand rather than referral); Roy v. Brown, 5 Vet. App. 554, 555 (1993) (finding that appellate review of an RO decision is initiated by an NOD); Percy v. Shinseki, 23 Vet. App 37 (2009) (noting that the Board’s jurisdiction is derived from the NOD). Two additional issues for which there was a timely NOD but no substantive appeal—allegations of clear and unmistakable error (CUE) in the April 2002 rating decision denying increased ratings for right hip and back disabilities—were also appealed by the Veteran through a timely NOD with the May 2013 rating decision. However, testimony was not elicited on these two issues during the March 2018 hearing, and the Veteran requested an additional Board hearing to provide this testimony. Accordingly, these issues have been separated from this appeal stream and will be the subject of a forthcoming decision to be issued after the Veteran’s next Board hearing. In addition, the Board finds that the record reasonably raises the question of whether the Veteran is unemployable due to the disabilities for which increased ratings are sought, and is taking jurisdiction of a claim for a TDIU rating as part and parcel of the claims seeking increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the August 2017 examination report raised the issue of entitlement to a separate rating for bladder dysfunction as secondary to the Veterans’ back disability. Because neurological symptoms are part and parcel of the Veteran’s claim for an increased rating for her back disability, the matters on appeal include a potential separate rating for bladder dysfunction secondary to the Veteran’s service-connected back disability. Cf. 38 C.F.R. 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1; see also A.B. v. Brown, 6 Vet. App. 35, 38-39 (1993). Accordingly, this issue has also been added to the case and is remanded below for necessary development. 1. Back Disability: Increased Rating Legal Criteria The Veteran is requesting an increased rating for her thoracic spine (upper back) disability, currently rated as 20 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71, DC 5237. Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected, the following ratings will apply: a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Unfavorable ankylosis for VA compensation purposes means that the entire thoracolumbar spine or the entire spine is fixed in flexion or extension. See id, Note (5). To determine the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. VA regulations and governing case law anticipate that examiners will offer opinions regarding additional functional loss due to flare ups, including estimates of additional loss of range of motion in degrees where appropriate, and that the Board shall ensure that examiners have evaluated all procurable and assembled information before determining that such estimates cannot be made. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes, a 60 percent (maximum) rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a., DC 5243. Note (1) following DC 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician. Id. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this issue. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. In February 2010, the Veteran filed a claim for an increased rating for her back disability. During the June 2010 VA spine examination, the Veteran reported worsening back pain and tingling that radiated from the back to the right shoulder and neck. She denied associated urinary symptoms and numbness. There was no ankylosis. On examination, forward flexion was 80 degrees, and combined range of motion was 180 degrees. The examiner diagnosed thoracic spine degenerative arthritis. During a June 2011 VA general examination, the Veteran reported back pain with flare-ups associated with lifting, bending, and prolonged sitting and standing. She denied tingling, numbness, weakness, poor coordination, or other symptoms. There was no ankylosis. Forward flexion was 90 degrees with pain at 60 degrees. Combined range of motion was 210 degrees as limited by pain. In an October 2014 rating decision, the RO increased the Veteran’s disability rating from 10 to 20 percent, effective June 15, 2011. During an August 2017 private examination (performed by the Veteran’s physical therapist), the Veteran reported chronic back pain that worsens after attempting household chores or grocery shopping. On examination, forward flexion was 48 degrees. Combined range of motion was 153 degrees. There was no ankylosis noted. The examiner stated that the last episode of IVDS was two years prior but did not note the duration of that episode. During her March 2018 Board hearing, the Veteran testified that her back pain had persisted despite treatment from many different doctors. She also emphasized that her back and service-connected hip disability affected her ability to walk and to work. Analysis The most recent examination report shows that pain limits the Veteran’s forward flexion 48 degrees. Accordingly, she would be entitled, based on range of motion limitation, to a 20 percent disability rating under DC 5237. She also has consistently reported, and examiners have consistently noted, additional functional limitation apart from pain and range of motion limitations. Her back disability affects working, standing, walking, lifting, and squatting. Accordingly, under the provisions of DeLuca and Mitchell, she is entitled to an increased rating of 40 percent. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Deluca, 8 Vet. App. at 207-07 (1995). A rating higher than 40 percent under DC 5237 requires unfavorable ankylosis of the entire thoracolumbar spine which the Veteran has not reported and the medical evidence, as summarized above, does not show. Accordingly, the Board finds that a rating higher than 40 percent under DC 5237 is not warranted. The Board also notes that the examination reports do not make clear notations of range of motion testing for active and passive motion or range of motion loss during flare-ups. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp, 29 Vet. App. at 26. However, the Board finds that remanding the issue for further examination would not result in a higher evaluation because there is no ankylosis, which is required for a higher rating. Because the Board finds that no benefit would flow to the Veteran with an additional examination, a remand is not required here. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided). The Board has considered whether the Veteran would be entitled to a higher rating under a different diagnostic code. However, the diagnostic codes specific to the spine use the same rating criteria, except for IVDS, which can also be rated based on incapacitating episodes. To receive a rating higher than 40 percent for IVDS, the evidence must show incapacitating episodes of six weeks or long duration during a 12-month period. The August 2017 examiner noted that the Veteran’s last episode of IVDS was two years prior; however, the examiner did not provide the length of this episode or confirm that the episode was physician-ordered bedrest, as required by the regulation. A review of the other medical evidence does not indicate any other IVDS episodes. The Veteran did not report or testify that she has had any periods of physician-ordered bedrest. Accordingly, because the Veteran has not reported, and the record does not show, any physician-prescribed episodes of bed rest lasting at least six weeks in a 12-month period, the Board finds that an increased rating higher than 40 percent is not warranted under the DC for IVDS. In addition, the Board notes the Veteran’s January 2010 written statement requesting a 100 percent rating, TDIU, and/or an extraschedular rating. An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321 (b)(1); Thun v. Peake, 22 Vet. App. 111,115-16 (2008). However, in this case, the evidence fails to show unique or unusual characteristics of the Veteran’s back disability that would render the schedular rating criteria inadequate. The symptoms reported by the Veteran include pain, impaired range of motion, and associated functional impact. The schedular rating criteria specifically provide for ratings based on limitation of motion and functional loss including as due to pain. See 38 C.F.R. § 4.71a, Plate II; see Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain). Regarding other symptoms possibly related to the Veteran’s back condition, the Board is remanding the issues of upper and lower extremity tingling and numbness and bladder dysfunction for development as separate issues. Therefore, the Board finds that all reported symptoms are either contemplated by the assigned schedular rating or are being developed as separate issues. Accordingly, the schedular rating adequately assesses the Veteran’s back disability and referral for consideration of an extraschedular rating is not required. Finally, in the April 2011 NOD, the Veteran alleged clear and unmistakable error in the June 2010 rating decision denying an increased rating higher than 10 percent for her service-connected back disability. As noted in the introduction, however, the June 2010 rating decision is the rating decision currently on appeal; therefore, that rating decision is not final. As such, the Veteran need not establish clear and unmistakable error to challenge the decision. 38 U.S.C. §§ 5109A, 7104; 38 C.F.R. § 3.105(a). The concerns the Veteran has raised regarding this rating decision have been addressed in the above discussion of the increased rating claim. 2. Service connection for insomnia, to include as secondary to pain for service-connected disabilities. For the reasons outlined above, service connection is warranted. 3. TDIU. For the reasons outlined above, TDIU is warranted. REASONS FOR REMAND The Board notes with appreciation the Veteran’s efforts to provide evidence including testimony, written statements, and medical records. This evidence has been extremely helpful for the Board’s review of this case. The Veteran has partnered with VA in developing these claims while living with significant pain and disability. Regarding the claims remanded below, however, the Board emphasizes to the Veteran that the law requires that a causal linkage (nexus) be established between the disabilities and service OR between the claimed disabilities and an already service-connected disability before VA may grant service connection. Accordingly, the Board suggests to the Veteran (as discussed during the March 2018 Board hearing) that any additional evidence submitted in support of service connection claims relate to a potential causal linkage between the claimed disability and the Veteran’s service and/or between the claimed disability and an already service-connected disability. 1. Service connection for a neck disability, to include as secondary to service-connected back and hip disabilities, is remanded. A remand is necessary to afford the Veteran an additional VA examination because the January 2015 VA examiner’s negative nexus opinion is inadequate and the August 2017 private examination report does not include a nexus statement. 2. Service connection for left upper extremity tingling, to include as secondary to service-connected back and hip disabilities, is remanded. 3. Service connection for left upper extremity tingling, to include as secondary to service-connected back and hip disabilities, is remanded. These two disabilities are remanded for a VA examination. 4. Service connection for left foot disabilities, to include as secondary to service-connected back and hip disabilities, is remanded. 5. Service connection for right foot disabilities, to include as secondary to service-connected hip and back disabilities, is remanded. A remand is necessary to afford the Veteran an additional VA examination because the August 2017 examination report appears to indicate that the Veteran has lower extremity radiculopathy, but the report also indicates that this condition is due to a lumbar spine condition rather than the Veteran’s service-connected thoracic spine disability. Because the examination report does not include an explanation associated with this finding, a remand is required to afford the Veteran an additional examination. 6. Service connection for a left knee disability, to include as secondary to service-connected back and hip disabilities, is remanded. A remand is necessary because the March 2013 VA examiner’s nexus opinion does not provide the Board with the information necessary to decide the claim, and the August 2017 private examination report does not discuss causal linkage. 7. Service connection for a right knee disability, to include as secondary to service connected back and hip disabilities is remanded. These two claims are remanded because the March 2013 VA examination report does not provide the Board with the information necessary to decide the claim, and the August 2017 private examination report does not discuss causal linkage. 8. Increased rating for a right hip disability and associated low back pain is remanded. A remand is necessary to afford the Veteran a contemporaneous VA examination that complies with the U.S. Court of Appeals for Veterans Claims’ decisions regarding legal adequacy of VA examinations. Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). 9. Service connection for a chest condition, to include as secondary to service-connected back and hip disabilities. During the March 2018 Board hearing, the Veteran clarified that this claim is for an orthopedic/musculoskeletal chest condition (and not a heart condition) as secondary to her service-connected back and hip disabilities. A remand is required to evaluate this claim considering this updated information. 10. Separate rating for bladder control deficits secondary to the Veteran’s service-connected back disability is remanded. As noted in the introduction, this issue was added to the case to because the August 2017 examination report indicated that this symptom may be related to the Veteran’s service-connected back disability. However, the examiner did not provide sufficient information for the Board to decide the claim, and a remand is necessary to afford the Veteran an examination to better evaluate this issue. The matters are REMANDED for the following action: 1. Obtain all updated records of VA and adequately identified private treatment that the Veteran has received for the disabilities on appeal. 2. Then schedule the Veteran for an examination with an appropriate examiner to evaluate the nature and cause of the service connection claims and the current severity of increased ratings claims on appeal. The Board recognizes that the complex and intertwined nature of the medical questions involved require significant work on the part of the medical examiner. The Board regrets the need to remand the matter to the RO; however, the Board is unable to adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with these directives (that is, full and thoroughly explained answers to each of the questions) to avoid additional delays in adjudication. For the neck and left and right upper extremity tingling: A new examination is needed because the January 2015 VA examiner did not provide an opinion on direct service connection, the provided opinion on secondary service connection does not address aggravation, and the opinion does not address the Veteran’s primary theory of entitlement: that service-connected hip disabilities caused a fall and neck injury. [The Board draws the examiner and RO’s attention to March 2018 hearing transcript and July 2018 written statement where the Veteran outlined pertinent evidence that will hopefully provide helpful information to the RO and the examiner.] Examination instructions: a) Identify any neck/cervical spine disabilities, to include established neck arthritis and IVDS. Any needed diagnostic testing should be performed. b) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was incurred in or is otherwise related to the Veteran’s service? c) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed was CAUSED by the Veteran’s service-connected back and hip disabilities? The answer provided MUST discuss the Veteran’s report of falling and injuring her neck due to her service-connected back and hip disabilities. d) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was AGGRAVATED by the Veteran’s service-connected disabilities? (Aggravation means the disability increased in severity beyond its natural progression.) The answer provided MUST discuss the Veteran’s report of falling and injuring her neck due to her service-connected back and hip disabilities. e) Identify all disabilities related to the Veteran’s reported left and right upper extremity tingling and pain. Any needed diagnostic testing should be performed. f) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was incurred in or is otherwise related to the Veteran’s service? g) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed was CAUSED by the Veteran’s service-connected back (and neck disability if found to be service connected) disabilities? h) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was AGGRAVATED by the Veteran’s service-connected disabilities? (Aggravation means the disability increased in severity beyond its natural progression.) For the chest: The Veteran testified that this claim is for a non-cardiac source of chest pain because testing indicated that these symptoms are not related to her heart. Pertinent evidence includes the June 2011 VA examination report where the Veteran reported being told in the emergency room that her chest pain was related to her thoracic spine disability and the July 2017 private treatment record where the Veteran’s physician considered musculoskeletal pain, GERD, and anxiety as possible sources for the Veteran’s report chest pain. Examination instructions: a) Identify all chest disabilities. Any needed diagnostic testing should be performed. If no disability is identified, the examiner MUST discuss any abnormal findings noted and provide a detailed discussion of whether these findings and/or symptoms cause functional loss. See Saunders v. Wilkie, 886 F.3d 1356, 2018 U.S. App. LEXIS 8467 (Undiagnosed conditions may be service connected if such conditions cause functional impairment.) b) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability (or pain with associated functional loss) was incurred in or is otherwise related to the Veteran’s service? c) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability (or pain with associated functional loss) was CAUSED by the Veteran’s service-connected disabilities? d) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability (or pain with associated functional loss) was AGGRAVATED by the Veteran’s service-connected disabilities? (Aggravation means the disability increased in severity beyond its natural progression.) For the knees: a) Please identify any left or right knee disabilities. Any needed diagnostic testing should be performed. The diagnoses of mild narrowing of the medial compartment (June 2011 VA examination report) and bilateral patella-femoral syndrome (March 2013 VA examination report), and bilateral knee osteoarthritis (August 2017 examination report) must be discussed. b) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was incurred in or is otherwise related to the Veteran’s service? c) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed was CAUSED by the Veteran’s service-connected disabilities? d) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was AGGRAVATED by the Veteran’s service-connected disabilities? (Aggravation means the disability increased in severity beyond its natural progression.) The examiner MUST discuss the Veteran’s report during the June 2011 VA examination that she was told by her rheumatologist that her knee conditions were due to her hip disabilities and associated abnormal gait. For the bladder condition as secondary to the Veteran’s back disability a) Please identify any bladder/incontinence-related disabilities. Any needed diagnostic testing should be performed. b) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability is RELATED TO or CAUSED BY the Veteran’s service-connected back disability? c) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was AGGRAVATED by the Veteran’s service-connected back disability? (Aggravation means the disability increased in severity beyond its natural progression.) For the feet/lower extremities Please complete both the orthopedic and the neurologic examination reports/disability questionnaires and provide opinions on the following: d) Please identify any disabilities involving the Veteran’s feet and legs, to include diagnosed hallux valgus, arthritis, tarsal tunnel, and radiculopathy. The examiner should also address the Veteran’s March 2018 Board testimony that her feet are always cold and her toes turn black, symptoms she testified her physician has treated with Neurontin. e) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability had its onset in or is otherwise related to the Veteran’s active service? f) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability is RELATED TO or CAUSED BY the Veteran’s service-connected back or hip disability? g) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed disability was AGGRAVATED by the Veteran’s service-connected back or hip disability? (Aggravation means the disability increased in severity beyond its natural progression.) For the right hip The examiner must describe all impairments of the Veteran’s right hip disability; make determinations regarding range of motion, including any additional functional impairment; and identify any related neurological symptoms. The examiner must test active and passive range of motion, and provide weight-bearing and non-weight-bearing information, or detail why such testing is not necessary. Range of motion MUST be expressed in terms of degrees for active and passive motion. If there is pain during range of motion testing, the examiner MUST state the degrees where the pain starts. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion caused by flare-ups of the Veteran’s disabilities (if the Veteran is not experiencing a flare-up at the time of the examination, the examiner should ask the Veteran to describe the frequency, severity, duration, and type of symptoms experienced during flare-ups and provide an opinion based on that information). The examiner’s comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss or loss of range of motion during flare-ups MUST be expressed in degrees of additional range of motion loss. In summary, the following five items MUST be described in degrees 1) active range of motion 2) passive range of motion 3) where any pain starts during active range of motion 4) where any pain starts during passive range of motion, and 5) range of motion during flare-ups (which MUST be estimated if the examination is not conducted during a flare-up). A DETAILED explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a THOROUGH explanation.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel