Citation Nr: 18148216 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-00 951 DATE: November 7, 2018 REMANDED Entitlement to a rating in excess of 10 percent for a lumbosacral strain is remanded. Entitlement to service connection for left heel condition, to include as secondary to service connected lumbosacral strain, is remanded. Entitlement to service connection for a right heel condition, to include as secondary to service connected lumbosacral strain, is remanded. Entitlement to service connection for a right leg condition, to include as secondary to service connected lumbosacral strain, is remanded. Entitlement to service connection for a left leg condition, to include as secondary to service connected lumbosacral strain, is remanded. Entitlement to service connection for a bowel condition, to include as secondary to service connected lumbosacral strain, is remanded. Entitlement to service connection for bladder condition, to include as secondary to service connected lumbosacral strain, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to February 1972. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 and December 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2015 correspondence, the Veteran indicated that he is unable to work because of his service-connected back condition. While the Veteran has not filed a separate application for TDIU, Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), provides that TDIU, when reasonably raised by the record, is part of any claim for an increased rating. As the matter of TDIU has been raised in the context of the present appeal before the Board, it has been included as a separate issue above. 1. Entitlement to a rating in excess of 10 percent for a lumbosacral strain is remanded. A. Private Treatment Records The Veteran states that he has been treated for the claimed disability at the Southeast Iowa Chiropractic Clinic and by Dr. D.S. It does not appear from the available evidence that any efforts have been made to obtain the complete records of that treatment. Because such records, if obtained, might contain information bearing on the Veteran’s appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). B. VA Examination A February 2014 note from the Southeast Iowa Chiropractic clinic showed that the Veteran’s forward flexion was measured to be 6 degrees and his combined range of motion was measured to be 78 degrees. However, the provider did not use a goniometer but used an inclinometer. The use of a goniometer in the measurement of limitation of motion is indispensable in examinations. See 38 C.F.R. § 4.46. The Veteran’s attorney submitted articles in support of her position that measurements using an inclinometer are reliable and there is a small difference between range of motion results using a goniometer versus an inclinometer. The Board finds that an opinion is needed on whether measurements using an inclinometer are comparable to measurements using a goniometer. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Additionally, a November 2014 VA opinion states that diagnoses of degenerative joint disease and degenerative disc disease of the lumbar spine are not related to the service-connected lumbosacral strain, because strains do not cause arthritis in joints or disruption to the intervertebral disc. The examiner indicated there was no disruption to the intervertebral disc or articular surface of the joint at the time of injury; hence, the degenerative joint disease and degenerative disc disease was most likely a natural aging process. This opinion does not contain a clear rationale as it does not clearly opine as to whether the service-connected back disability could have caused or aggravated the degenerative joint disease and degenerative disc disease. Moreover, even if the degenerative joint disease and degenerative disc disease were not caused or aggravated by the service-connected disability, when symptoms of disability cannot clearly be attributed to the service-connected or nonservice-connected disability, the Board must associate them with the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)) (noting that the Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence that does so). If the degenerative disc disease and degenerative joint disease are determined not to be a part of the service-connected back disability, then it is unclear from the record whether the symptoms of these disabilities can be distinguished from the service-connected back disability. As a result of the above factors, remand for further examination is necessary. 2. Claims seeking entitlement to service connection for a left heel condition, a right heel condition, a right leg condition, a left leg condition, a bowel condition, and a bladder condition are remanded. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In the present case, in September 2014, the Veteran was provided a VA examination for peripheral nerves. The examiner opined that it would be resorting to speculation to conclude that the Veteran’s claimed condition of decreased sensation in the heels was related to the Veteran’s service-connected lumbosacral strain. As rationale, the examiner stated that by examination and history alone, it was difficult to ascertain whether the Veteran truly has peripheral neuropathy. The examiner added that an EMG study would be needed to determine if a diagnosis of peripheral neuropathy was warranted. The Board finds this opinion regarding the Veteran’s left heel claim to be inadequate. The examiner did not explain why it is resorting to speculation to not diagnose the Veteran absent an EMG study. The Board also notes that the Veteran attempted to undergo an EMG study following the September 2014 VA examination, but he was unable to tolerate the pain. As to the right heel, right leg, left leg, bowel, and bladder conditions, in November 2014 a VA examiner opined that it was less likely than not that these conditions were related to the Veteran’s service-connected lumbosacral strain. However, the examiner did not provide an opinion on aggravation. Thus, the Board finds this opinion to be inadequate. The Board is cognizant of a March 2014 note from Dr. D.S., in which he diagnosed the Veteran with intervertebral lumbar disc disorder with myelopathy (lumbar region) and lumbago and provided an opinion that altered sensation in the right heel was related to his degenerative disc disease and large foraminal disc herniation at L4-L5. As noted above, the record currently indicates that neither of these conditions are service connected and the Board is remanding for further clarification of the extent of the Veteran’s service-connected back disability. As such, the claims are intertwined with the back claim. Additionally, new examinations and opinions—based on full review of the record and supported by stated rationale—are needed to fairly resolve the Veteran’s claims. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 3. Entitlement to a TDIU is remanded. The Veteran’s claim for entitlement to a TDIU is inextricably intertwined with the increased rating claim. Therefore, consideration of the TDIU claim must be deferred pending resolution of the Veteran’s claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records from May 2016 to the present. 2. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include records from the Southeast Iowa Chiropractic Clinic and Dr. D.S. Based on the response received, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 3. After completing the development requested in items 1 and 2, schedule the Veteran for an examination of the current severity of his service-connected lumbosacral strain with an examiner different from the examiner who completed the November 2014, January 2016, and May 2016 examinations. In completing the examination, the examiner is asked to address the following: a.) 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 service-connected lumbosacral strain alone and discuss the effect of the Veteran’s lumbosacral strain on any occupational functioning and activities of daily living. b.) Provide an opinion as to whether the Veteran’s degenerative joint disease and degenerative disc disease of the back were at least as likely as not caused or aggravated (i.e., any worsening of the condition beyond its natural progression) by the service-connected lumbosacral strain. c.) If the response to both questions in b.) is that it is less likely than not, then please provide an opinion as to whether any symptoms of the service-connected lumbosacral strain can be separately distinguished from symptoms of the degenerative joint disease and/or degenerative disc disease, including any neurological impairment. d.) Provide an opinion regarding whether it is at least as likely as not that range of motion measurements using an inclinometer are comparable to measurements using a goniometer. In providing this opinion, the clinician is asked to discuss the articles submitted by the Veteran’s attorney in February 2016. A complete rationale for all opinions must be provided. If it is not possible to provide any opinion requested, 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). 4. After completing the development requested in items 1 and 2, schedule the Veteran for an examination by an appropriate clinician to determine the nature, extent, and etiology of his left heel, right heel, left leg, and right leg disabilities. The examiner is asked to provide an opinion on the following questions: (a.) Identify all current chronic left heel, right heel, left leg, and right leg disabilities that have existed since April 2014. (b.) Is it at least as likely as not that any diagnosed left heel, right heel, left leg, and right leg condition(s), to include peripheral neuropathy, was caused by the Veteran’s service-connected lumbosacral strain? (c.) Is it at least as likely as not that any diagnosed left heel, right heel, left leg, and right leg condition(s), to include peripheral neuropathy, was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected lumbosacral strain? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. After completing the development requested in items 1 and 2, schedule the Veteran for an examination by an appropriate clinician to determine the nature, extent, and etiology of his bladder and bowel disabilities. The examiner is asked to provide an opinion on the following questions: (a.) Identify all current chronic bladder and bowel disabilities that have existed since April 2014. (b.) Is it at least as likely as not that any diagnosed bowel and bladder condition(s) was caused by the Veteran’s service-connected lumbosacral strain? (c.) Is it at least as likely as not that any diagnosed bowel and bladder condition(s) was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected lumbosacral strain? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 6. Provide the Veteran with appropriate notice specific to a TDIU claim, complete any development needed, and adjudicate the matter of entitlement to a TDIU rating raised in the context of the increased rating for lumbosacral strain. If it is denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Patel, Associate Counsel