Citation Nr: 18145824 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-04 762A DATE: October 30, 2018 REMANDED 1. Entitlement to service connection for a bilateral ankle disability is remanded. 2. Entitlement to service connection for a bilateral knee disability is remanded. 3. Entitlement to service connection for a right wrist disability is remanded. 4. Entitlement to an initial compensable rating for service-connected mild left mandibular paresthesia is remanded. 5. Entitlement to an initial evaluation in excess of 10 percent for service-connected lumbar spine disability, to include degenerative disc disease (DDD), is remanded. 6. Entitlement service connection for a middle finger, right hand, disability is remanded. 7. Entitlement to service connection for a bilateral hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2011 to January 2016. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a service connection for body acne was been raised by the record in the February 2016 Notice of Disagreement (NOD), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The record does not indicate that any such action has been taken by the AOJ. Therefore, the Board does not have jurisdiction over the issue, and the Board refers it to the AOJ for appropriate action. 1. Entitlement to service connection for a bilateral ankle disability, a bilateral knee disability, and a right wrist disability is remanded. The Veteran has not been afforded a VA examination for his bilateral ankle disability, bilateral knee disability, and right wrist disability. In this case the Veteran asserts joint pain in the bilateral knees, joint pain in the right wrist, and joint pain in the bilateral ankles. Service treatment records note complaints of and treatment for wrist pain, knee pain, and ankle pain in service. As there is evidence of in-service occurrence, a current disability, and a potential link between the two, examination is required. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79. Given the lack of sufficient medical evidence to make a decision on this matter, the Veteran should be afforded VA examinations to address the etiology of any current ankle, knee, and right wrist disabilities. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). 2. Entitlement to service connection for a middle finger (right hand) disability and a bilateral hip disability is remanded. The Veteran asserts that he has a middle finger (right hand) disability and a bilateral hip disability. Although the Veteran did not specifically list such disabilities on his NOD, the Veteran did include medical evidence regarding his finger disability attached to his NOD, and the Veteran did list both disabilities on the VA Form 9. Therefore, the Board construes such as an NOD, as the Veteran has indicated his disagreement with the denial of his middle finger (right hand) and bilateral hip disabilities in the February 2016 rating decision. The AOJ has not provided an SOC addressing such issues. Therefore, the Board must remand the issues of entitlement to service connection for a middle finger (right hand) disability and a bilateral hip disability for the RO to furnish an SOC and to provide the Appellant and his representative an opportunity to perfect an appeal. Manlicon v. West, 12 Vet. App. 238 (1999). 3. Entitlement to an initial compensable rating for service-connected mild left mandibular paresthesia is remanded; and entitlement to an initial evaluation in excess of 10 percent for service-connected lumbar spine disability, to include degenerative disc disease (DDD), is remanded. The Veteran was afforded a VA examination of his mild left mandibular paresthesia in June 2015, and the Veteran has not been afforded a VA examination of his lumbar spine disability during the pendency of this claim. In the September 2018 Appellant’s Brief, the Veteran asserts that the Veteran’s jaw examination was not adequate, as the Veteran experiences flare-ups. Given the medical evidence of record, the Board remands such claims for increased ratings for VA examinations to determine the current severity of the Veteran’s mild left mandibular paresthesia and lumbar spine disability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records. Should such exist, associate them with the Veteran’s electronic claims record. 2. Schedule the Veteran for the appropriate VA examination(s) to determine the nature and etiology of the Veteran’s bilateral knees disability, a bilateral ankles disability, and a right wrist disability. The electronic claims file, to include the Veteran’s service treatment records, VA and private treatment records, and statements, must be reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following: Knees (a) Clarify the Veteran’s current bilateral knee disability. (b) For each diagnosis noted in (a), opine whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s knee disability had its onset in service or is otherwise related to service, to include his injuries in service. The examiner is directed to the complaints of pain and treatment for such in service. See, e.g., July 2015 and September 2015 and Service Treatment Records. Ankles (c) Clarify the Veteran’s current bilateral ankle disability. (d) For each diagnosis noted in (a), opine whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s ankle disability had its onset in service or is otherwise related to service, to include his injuries in service. The examiner is directed to the complaints of pain and treatment for such in service. See, e.g., July 2015 and September 2015 and Service Treatment Records. Right Wrist (e) Clarify the Veteran’s current right wrist disability. (f) For each diagnosis noted in (a), opine whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s right wrist disability had its onset in service or is otherwise related to service, to include his injuries in service. The examiner is directed to the complaints of pain and treatment for such in service. See, e.g., October 2015 and September 2015 and Service Treatment Records. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau, 492 F.3d at 1377. A detailed rationale for the opinions must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for an examination of the current severity of his lumbar spine disability, to include degenerative changes. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. (a) Conduct all indicated diagnostic tests that are deemed necessary for an accurate assessment of this condition, including an analysis of any additional disability owing to pain, weakness, premature or excess fatigability, or incoordination, such as during prolonged, repeated use or during “flare-ups”. The examiner should report (in degrees) the point at which pain is experienced. These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been done and reflect the results of the testing. If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so. The nature and all symptoms of the lumbar spine and degenerative changes, including the frequency and severity of any flare ups, must be noted. The examiner is to note a full and complete history of the Veteran’s symptoms, to include symptoms associated with any flare-ups. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to ascertaining information as to the frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, No. 16-1385 (Vet. App. September 6, 2017). 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). To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine and degenerative changes alone, and discuss the effect of the Veteran’s lumbar spine and degenerative changes on any occupational functioning and activities of daily living. (b) Clarify whether the Veteran has had any incapacitating episodes during the past 12 months, and, if so, the number of episodes and the duration of them. *An incapacitating episode is defined by VA regulation as a period of acute signs and symptoms due to intervertebral disc syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician. (c) Determine whether the Veteran has any neurologic impairment because of his cervical and/or lumbar spine disabilities, including, but not limited to, bowel or bladder impairment or any upper and/or lower extremity radiculopathy. If the Veteran does have this additional impairment, then indicate which nerves have been affected by paralysis, incomplete paralysis, neuralgia, or neuritis, and must further describe the severity of the neurologic impairment in terms of whether it is mild, moderate, moderately severe, severe, or complete. 4. Schedule the Veteran for an examination with a qualified medical professional to determine the current severity of his service-connected mild left mandibular paresthesia. Prior to scheduling the requested examination, ask the Veteran to provide an estimated time or time of the day when he experiences or is likely to experience flare-ups of his mild left mandibular paresthesia disorder. Make all reasonable efforts to schedule the Veteran for a new examination during a flare-up. See September 2018 Appellant’s Brief. The entire claims file must be made available to and be reviewed by the examiner, and it must be confirmed that such records were available for review. Obtain written documentation of all efforts to schedule the requested examination during a flare-up and associated all such documentation with the Veteran’s claims file. All indicated evaluations, studies, and tests should be accomplished and all findings reported in detail. The examiner should attempt to estimate the extent of the additional loss in functional ability due to the Veteran’s mild left mandibular paresthesia on repeated use or during flare-ups due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, or incoordination. The examiner should describe this estimate in terms of additional paralysis or loss of motion. If the examiner cannot describe the requested estimate, the examiner must explain why. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 5. Evaluate the evidence of record, and issue an SOC to the Veteran regarding entitlement to service connection for a middle finger (right hand) disability and a bilateral hip disability. The Appellant is advised that a timely Substantive Appeal will be necessary to perfect an appeal to the Board concerning this matter. 38 C.F.R. § 20.302 (b) (2018). 6. After undertaking any other development deemed appropriate, readjudicate the issues of entitlement to an increased rating for mild left mandibular paresthesia is remanded and for a lumbar spine disability, to include DDD, and the issues of entitlement to service connection for a bilateral knee disability, a bilateral ankle disability, and a right wrist disability. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded an opportunity to respond before the record is returned to the Board for further review. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamie Tunis, Associate Counsel