Citation Nr: 18150709 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-55 916A DATE: November 15, 2018 REMANDED Entitlement to service connection for a left thumb disability is remanded. Entitlement to an initial rating higher than 10 percent for a left knee strain is remanded. Entitlement to an initial rating higher than 20 percent for a lumbosacral strain is remanded. REFERRED The issue of entitlement to service connection for a disorder manifested by right rib pain was raised in a January 2017 correspondence, and the issues of entitlement to service connection for posttraumatic stress disorder and left lower extremity radiculopathy, to include secondary to a lumbosacral strain, were raised in an August 2018 application. As no action has been taken with respect to these claims, they are referred to the agency of original jurisdiction for appropriate action. REASONS FOR REMAND The Veteran served on active duty from September 2007 to December 2011. Service Connection for a Left Thumb Disability The Veteran claims entitlement to service connection for a left thumb disability. He wrote in November 2017 that he was treated in service for a left thumb disorder and still has issues with it today. The Veteran’s service treatment records show that in October 2008 he had a wound on his thumb sutured. The Veteran attended a VA examination in November 2016, and he was diagnosed with a left thumb strain. He reported that in around 2009 he was repairing a piece of equipment and lacerated his left thumb. He reported that he has periodically experienced left thumb pain ever since, and that it was aggravated by rapidly grabbing objects and by prolonged gripping. The examiner’s medical opinion stated only that there was “no available medical documentation in the current claims file of a thumb injury during military service.” In light of the October 2008 record the November 2016 medical opinion is inadequate. This issue is therefore remanded in order to obtain a new VA examination and opinion. Increased Rating for Left Knee At a November 2016 VA examination, the Veteran reported having ongoing knee pain that was aggravated by prolonged standing and carrying heavy objects. He reported having flare ups that caused severe pain. Range of motion testing found flexion to 90 degrees and extension to 0 degrees, but there was reduced capacity for kneeling and squatting. There was no ankylosis. There was pain on flexion and tenderness to palpation. The Veteran was able to perform repetitive use testing with no loss of motion. The examiner reported that he was unable to say without resort to mere speculation whether the Veteran had further functional loss with use over time or flare ups, because the claimant was not being examined after use over time or during a flare up. The November 2016 medical opinion is inadequate in light of the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Sharp holds that VA examiners must attempt to estimate functional loss during a flare up based on all information that can be feasibly derived, including the lay statements of the Veteran. In this case, it does not appear that the examiner was willing to consider the lay statements of the Veteran or his medical treatment records, which show frequent treatment for left knee problems, prior to determining that he could not estimate functional loss without resort to speculation. In addition, the Veteran’s VA treatment records indicate that his left knee symptoms have gotten worse since his November 2016 VA examination. In June 2018, the Veteran was treated for complaints of left knee buckling, instability, and hyperreflexia. In August 2018, he reported a history of a left knee meniscus tear. Imaging found a linear signal abnormality within the posterior body of the medial meniscus. The Veteran also submitted a claim in for an increased evaluation for his left knee, indicating that he believed his left knee had worsened. This issue is therefore remanded in order to obtain a new VA examination of the Veteran’s left knee disability. Increased Rating for Lumbosacral Strain At the November 2016 VA examination, the Veteran reported having ongoing back problems since service and stated that since he started working in a warehouse lifting heavy freight, his spinal condition had deteriorated. He reported having flare ups that caused excruciating pain to a level 10. The Veteran’s range of motion was tested, but the examiner indicated that he was unable to estimate loss of function with repeated use over time or with flare ups without resort to speculation because the examination was not being held after use over time or during a flare up. The examiner found no radicular pain or other signs of radiculopathy. As discussed, under Sharp, VA examiners must attempt to estimate functional loss during a flare up based on all information that can be feasibly derived, and the November 2016 VA examiner failed to do so. Additionally, the Veteran has also indicated that he now has left lower extremity radiculopathy that may be related to his lumbosacral strain. A February 2018 private chiropractor treatment record shows that the Veteran reported that his symptoms were getting worse. The chiropractor noted aggravation of the sciatic nerve and compression on the right side causing lumbar nerve root compression syndrome. The Board requests that the Veteran’s VA examination include an evaluation of all neurological disorders related to his lumbosacral strain, including any lower extremity radiculopathy. As the Veteran has submitted some treatment records from private providers, he should be requested to submit any additional, relevant private medical records or authorization to obtain such records. The matters are REMANDED for the following action: 1. Obtain all available records from the Fayetteville VA Medical Center, including its affiliated facilities, the Jacksonville Community Based Outpatient Clinic and the Wilmington Health Care Center. If any such records cannot be located, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Send to the Veteran and his representative a letter requesting that the appellant provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any additional relevant private medical records, to specifically include treatment from the Onslow Spine and Rehabilitation Center for treatment of the lumbar spine, and from EmergeOrtho for treatment of the left knee. If the Veteran provides new completed release forms authorizing VA to obtain these treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. 3. Thereafter, arrange for the Veteran to undergo a VA orthopedic examination with a physician to determine the nature and etiology of any left thumb disorder, and to evaluate the current severity of his service-connected left knee strain and lumbosacral strain, to include any radiculopathy or other associated neurological symptoms. The examiner must be provided access to all files in Virtual VA/Legacy and VBMS. The examiner must specify in the report that these records have been reviewed. All indicated evaluations, studies, and tests should be conducted. The examiner should then address: a) What are the Veteran’s current diagnoses of the left thumb? b) For each diagnosed left thumb disorder, address whether is it at least as likely as not (50 percent or greater probability) that the disorder had its onset during, or is otherwise related to any disease or injury in the claimant’s service. Please address the October 2008 in-service treatment for left thumb wound suturing, and the Veteran’s assertions that he injured his left thumb in service and has had problems with it ever since. c) Perform all necessary tests to determine the current severity of the Veteran’s lumbosacral strain. The examiner should address whether the joints exhibit weakened movement, excess fatigability or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss. d) The examiner must evaluate the Veteran’s lower extremities and determine whether he has radiculopathy in either leg and to what extent; as well whether the Veteran has any other neurological symptoms caused by the service connected lumbar strain. The examiner must consider the Veteran’s February 2018 chiropractic treatment which found aggravation of the sciatic nerve and compression on the right side causing lumbar nerve root compression syndrome. e) Perform all necessary tests to determine the current severity of the Veteran’s left knee disability. In evaluating the Veteran, the examiner must report complete range of motion findings for each knee. The examiner must address whether the joints exhibit weakened movement, excess fatigability or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss. f) The examiner must address the Veteran’s 2018 treatment for left knee buckling and instability and discuss whether he has instability and to what severity. The examiner must also discuss the August 2018 finding of a linear signal abnormality within the posterior body of the medical meniscus and discuss whether this indicates that the Veteran has any further functional impairment related to a meniscal tear. g) For all range of motion evaluations the examiner must evaluate 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, to specifically include the degree of functional loss during flare-ups. The Board advises that it is inadequate for the examiner to state that he or she is unable to offer such an opinion because the examination was not performed during a flare up. Rather, the examiner must attempt to estimate the functional loss based on statements provided by the Veteran and available medical records. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must 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, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel