Citation Nr: 18149695 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-20 602 DATE: November 13, 2018 REMANDED Entitlement to service connection for restless leg syndrome is remanded. Entitlement to a rating higher than 10 percent for mild facet arthropathy L5-S1 and mild retrolisthesis L1-L with degenerative disc disease and degenerative joint disease of the thoracic spine is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1988 to September 1991. 1. Entitlement to service connection for restless leg syndrome is remanded. In an August 2016 statement, the Veteran asserted that his restless leg syndrome was caused by his service-connected spinal injury. Accordingly, the Board finds that a VA opinion as to the likelihood that the Veteran’s restless leg syndrome was caused or aggravated by his service-connected spine disability must be obtained in order to fulfill VA’s duty to make reasonable efforts to assist the Veteran in substantiating the claim. See 38 U.S.C. § 5103A (a) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (noting that VA is obliged to provide an examination if there is insufficient competent medical evidence on file to decide the claim, when the record contains competent evidence of a current disability or persistent or recurrent symptoms of a disability, when evidence establishes that an event, injury, or disease occurred in service, and when there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (indicating that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A (d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggests an association between the disability and service or a service-connected disability). 2. Entitlement to a rating higher than 10 percent for mild facet arthropathy L5-S1 and mild retrolisthesis L1-L with degenerative disc disease and degenerative joint disease of the thoracic spine is remanded. The U.S. Court of Appeals for Veterans Claims (Court) has issued a precedential decision holding that for VA examinations to be adequate for rating musculoskeletal disabilities, they must record range of motion testing for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of motion of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) (citing 38 C.F.R. § 4.59 (2017)). Furthermore, if the examiner is unable to conduct the required testing, or concludes that the required testing is not necessary, he or she must clearly explain why what that is so. Id. at 170. Here, the April 2012 and March 2016 VA examination reports provide range of motion results, but do not specify the type of testing on which these results were based (i.e. active or passive, weight-bearing or non-weightbearing), or provide results for each type of test, as required under Correia. If only active range-of-motion testing was performed, and the other tests were deemed not necessary or possible, the examiners did not state this in their reports. As this is a determination that requires medical judgment, the Board may not make its own independent finding on this issue. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, in a recent case, the Court of Appeals for Veterans Claims (the Court) indicated that “the VA Clinician’s Guide makes explicit what DeLuca [v. Brown, 8 Vet. App. 202 (1995)] clearly implied,” that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate without resort to speculation, must be predicated on a lack of medical knowledge among the medical community at large, as opposed to a limitation of the individual examiner (lack of expertise, insufficient information, or unprocured testing). Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board also observes that the Sharp holding, concerning any inability to estimate range of motion loss in terms of degrees, applies to pain due to flare-ups as noted in the April 2012 and March 2016 VA C&P examination reports. The examination reports do not include an adequate explanation for why an estimate could not be provided on the functional impairment caused by pain during a flare-up, or why the available information in the file was not sufficient to permit such an estimate. Sharp, supra. See also VA’s Clinician Guide, Ch. 11. Accordingly, remand for another examination is required. 3. Entitlement to a total disability for individual unemployability is remanded. The Board notes that the Veteran’s claim for a TDIU is inextricably intertwined with the grant of an increased rating for his thoracic spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Consideration of the claim for TDIU must be deferred pending the resolution of the increased rating for a degenerative disc disease of the thoracic spine. Moreover, as the claim is being remanded any recent VA treatment records should be obtained. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(2). The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA treatment dated since July 2015 and associate them with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the etiology of his restless leg syndrome. The Veteran’s claims file, including a copy of this remand, must be made available to and reviewed by the hearing examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. The examiner must address the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s restless leg syndrome was caused by any event or incident in service. (b) Whether it is at least as likely as not (50 percent or greater probability) the Veteran’s restless leg syndrome was caused or aggravated by (i.e. worsened by) the Veteran’s service connected thoracic spine injury. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. Upon receipt of any additional records, schedule the Veteran for an appropriate VA examination to assist in determining the nature and current level of severity of his service-connected degenerative disc disease of the thoracic spine. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation, as determined by the examiner. All pertinent symptomatology should be reported in detail. In particular, the examiner should test the range of motion using a goniometer in active motion, passive motion, weight-bearing, and non-weightbearing, for the thoracolumbar spine. See Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or non-weightbearing), must be specified. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and any additional relevant evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record, or by lack of sufficient expertise by the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, whether favorable or unfavorable, and citing the objective medical findings leading to the conclusions. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 4. Provide the Veteran with an appropriate VA examination to evaluate the issue of entitlement to a TDIU. The Veteran’s claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected disabilities on his employment. After a full examination and review of the claims file, the examiner should identify all limitations imposed on the Veteran as a consequence of each of his service-connected disabilities. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel