Citation Nr: 18151432 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-09 005 DATE: November 20, 2018 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right ear hearing loss disability is remanded. Entitlement to a compensable rating for right shoulder bicipital tendonitis (right shoulder disability) is remanded. Entitlement to a compensable rating for right knee patellofemoral pain syndrome (PFS) is remanded. Entitlement to a compensable rating for left knee PFS is remanded. Entitlement to a compensable rating for a right ankle strain is remanded. Entitlement to a compensable rating for a left ankle strain is remanded. Entitlement to a compensable rating for right elbow olecranon bursitis (right elbow disability) is remanded. Entitlement to an increased rating for degenerative disc disease of the thoracolumbar spine with Scheuermann's kyphosis (lumbar spine disability), currently rated as 20 percent disabling prior to November 13, 2014 and 40 percent disabling thereafter, is remanded. Entitlement to a compensable rating for right hip strain with limitation of extension is remanded. Entitlement to a compensable rating for left hip strain with limitation of extension is remanded. Entitlement to a compensable rating for a right hip strain with limitation of flexion is remanded. Entitlement to a rating in excess of 10 percent for left hip strain with limitation of flexion is remanded. Entitlement to a rating in excess of 10 percent for right hip strain with impairment of the right thigh rotation and abduction is remanded. Entitlement to a compensable rating for left hip strain with impairment of the left thigh rotation and abduction is remanded. Entitlement to a compensable rating for bilateral pes planus is remanded. Entitlement to a compensable rating for a left ear hearing loss disability is remanded. Entitlement to a rating in excess of 10 percent for tension headaches is remanded. REASONS FOR REMAND The Veteran had active service from June 2008 to September 2012. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran filed a notice of disagreement (NOD) at the RO concerning the issues of entitlement to service connection for a traumatic brain injury, vertigo, fibromyalgia, a left shoulder disability, bowel dysfunction; entitlement to increased ratings for bilateral lower extremity reflex sympathetic dystrophy of the sciatic and internal saphenous nerves and an adjustment disorder; and entitlement to an earlier effective date for the grant of a total disability individual unemployability (TDIU) as shown in the electronic claims file (VBMS). Such appeals are contained in the VACOLS appeals tracking system as active appeals at the RO. While the Board is cognizant of the United States Court of Appeals for Veterans Claims (Court) decision in Manlincon v. West, 12 Vet. App. 238 (1999), in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeals. Action by the Board at this time may serve to actually delay the RO’s action on the appeals. As such, no action will be taken by the Board at this time, and those issues will be the subject of a later Board decision, if ultimately necessary. 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for a right ear hearing loss disability is remanded. 3. Entitlement to a compensable rating for right shoulder disability is remanded. 4. Entitlement to a compensable rating for a right ankle strain is remanded. 5. Entitlement to a compensable rating for a left ankle strain is remanded. 6. Entitlement to a compensable rating for right knee PFS is remanded. 7. Entitlement to a compensable rating for left knee PFS is remanded. 8. Entitlement to a compensable rating for right elbow disability is remanded. 9. Entitlement to an increased rating for a lumbar spine disability, currently rated as 20 percent disabling prior to November 13, 2014 and 40 percent disabling thereafter is remanded. 10. Entitlement to a compensable rating for right hip strain with limitation of extension is remanded. 11. Entitlement to a compensable rating for left hip strain with limitation of extension is remanded. 12. Entitlement to a compensable rating for a right hip strain with limitation of flexion is remanded. 13. Entitlement to a rating in excess of 10 percent for left hip strain with limitation of flexion is remanded. 14. Entitlement to a rating in excess of 10 percent for right hip strain with impairment of the right thigh rotation and abduction is remanded. 15. Entitlement to a compensable rating for left hip strain with impairment of the left thigh rotation and abduction is remanded. 16. Entitlement to a compensable rating for bilateral pes planus is remanded. 17. Entitlement to a compensable rating for a left ear hearing loss disability is remanded. 18. Entitlement to a rating in excess of 10 percent for tension headaches is remanded. The evidence indicates there may be outstanding relevant VA treatment records. VA treatment records from December 28, 2017 and September 7, 2017 indicate that the Veteran was to return for follow up appointment on January 18, 2018, February 22, 2018, and August 10, 2018. VA treatment records subsequent December 28, 2017 have not been associated with the claims file. Additionally, VA treatment records from December 21, 2017, June 11, 2014, and July 22, 2013 indicates that various records had been scanned into VistA Imaging. It does not appear that these records have been associated with the claims file. A remand to obtain these records is required. Regarding the Veteran’s neck disability, a VA opinion was obtained in August 2016. The examiner stated that the Veteran’s neck disability was not proximately due to or the result of his service-connected lumbar spine or shoulder disabilities. Nevertheless, the examiner’s opinion did not address the aggravation prong of secondary service-connection. See Allen v. Brown, 7 Vet. App. 439, 449 (1995) (stating that “caused by” and “related to” do not address the aggravation aspect of secondary service connection). Additionally, while the examiner’s rationale in support of the negative secondary opinion addressed direct service connection, the examiner did not render the requested opinion addressing whether the Veteran’s neck condition was incurred in or otherwise related to active service. In light of the above, an addendum opinion is warranted. Regarding the Veteran’s right ear hearing loss claim, a VA opinion was obtained in December 2015. In support of the negative opinion the audiologist noted that a standard threshold shift did not occur for the right ear when comparing the Veteran’s entrance and separation audiograms. Nevertheless, the examiner did not address the Veteran’s other documented threshold shifts during service. Accordingly, an addendum opinion is warranted. Additionally, the December 2015 audiologist’s opinion references an April 26, 2012 audiogram at separation. It does not appear that audiogram results from that testing have been associated with the claims file. Accordingly, on remand the referenced audiogram should be obtained. The most recent VA right shoulder, thoracolumbar spine, hip, knee, and ankle examination reports do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiners stated that an opinion regarding functional impairment during periods of flare-ups could not be provided without resort to speculation, the examiners did not indicate that the speculation was due to lack of knowledge within the medical community. Accordingly, on remand the Veteran should be provided opportunities to report for VA examinations to ascertain the current severity and manifestations of the disabilities. The most recent VA elbow examination report does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the examination report does not contain passive range of motion measurements. Accordingly, on remand the Veteran should be provided an opportunity to report for a VA elbow examination to ascertain the current severity and manifestations of his right elbow disability. Regarding the Veteran’s pes planus, headaches, and left ear hearing loss, the Veteran’s last VA examinations were in December 2015. As the Board must remand the claims for other development, on remand he should be provided opportunities to report for VA examinations to ascertain the current severity and manifestations of these disabilities. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records and the VistA Imaging records referenced in the December 21, 2017, June 11, 2014, and July 22, 2013 VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain the audiogram results from the Veteran’s April 26, 2012 report of medical examination at separation. If the requested record is unavailable, the Veteran should be notified of such. 3. After records development is completed, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran’s neck disability. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that any neck disability present during the pendency of the appeal had its onset during service or is otherwise related to service. (b.) Whether it is at least as likely as not (50 percent probability or greater) that any neck disability present during the pendency of the appeal was caused by his service-connected lumbar spine, reflex sympathetic dystrophy syndrome, or right shoulder disabilities? (c.) If not caused by the service-connected lumbar spine, reflex sympathetic dystrophy syndrome, or right shoulder disabilities, is it at least as likely as not that any neck disability present during the pendency of the appeal is worsened beyond natural progression (aggravated) by his service-connected lumbar spine, reflex sympathetic dystrophy syndrome, or right shoulder disabilities? If the clinician finds that the Veteran's neck disability was aggravated by his service-connected disabilities, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the neck disability. A complete rationale should be provided for all opinions and conclusions expressed. 4. Schedule the Veteran for a VA audiological examination to determine the current severity of the Veteran’s left ear hearing loss and to obtain an opinion regarding his right ear hearing loss. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s hearing loss should be reported. Following review of the claims file and examination of the Veteran, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right ear hearing loss is causally related to service, to include the Veteran's noise exposure therein. The examiner should explain why or why not. In doing so, the examiner should discuss why the current hearing loss is/is not merely a delayed response to in-service noise exposure. The audiologist should explain the medical basis for any conclusion reached. 5. Schedule the Veteran for a VA right shoulder examination to determine the current severity of the Veteran’s right shoulder bicipital tendonitis. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the right shoulder bicipital tendonitis should be reported. To the extent possible, the examiner should differentiate between the symptoms attributable to the Veteran’s service-connected shoulder disability and those related to his complex regional pain syndrome. A complete rationale should be provided for all opinions and conclusions expressed. 6. Schedule the Veteran for a VA thoracolumbar spine examination to determine the current severity of the Veteran’s lumbar spine disability. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the lumbar spine disability should be reported. To the extent possible, the examiner should differentiate between the symptoms attributable to the Veteran’s service-connected lumbar spine disability and those related to his complex regional pain syndrome. A complete rationale should be provided for all opinions and conclusions expressed. 7. Schedule the Veteran for a VA hip examination to determine the current severity of his right and left hip disabilities. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s hip disabilities should be reported. To the extent possible, the examiner should differentiate between the symptoms attributable to the Veteran’s service-connected hip disabilities and those related to his complex regional pain syndrome. A complete rationale should be provided for all opinions and conclusions expressed. 8. Schedule the Veteran for a VA knee examination to determine the current severity of his right and left knee PFS. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s right and left knee PFS should be reported. To the extent possible, the examiner should differentiate between the symptoms attributable to the Veteran’s service-connected right and left PFS and those related to his complex regional pain syndrome. A complete rationale should be provided for all opinions and conclusions expressed. 9. Schedule the Veteran for a VA ankle examination to determine the current severity of his right and left ankle strains. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s right and left ankle strains should be reported. To the extent possible, the examiner should differentiate between the symptoms attributable to the Veteran’s service-connected ankle strain and those related to his complex regional pain syndrome. A complete rationale should be provided for all opinions and conclusions expressed. 10. Schedule the Veteran for a VA elbow examination to determine the current severity of his right elbow disability. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s right elbow disability should be reported. To the extent possible, the examiner should differentiate between the symptoms attributable to the Veteran’s service-connected right elbow disability and those related to his complex regional pain syndrome. A complete rationale should be provided for all opinions and conclusions expressed. 11. Schedule the Veteran for a VA headache examination to determine the current severity of his tension headaches. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s tension headaches should be reported. 12. Schedule the Veteran for a VA foot conditions examination to determine the current severity of his pes planus. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the pes planus should be reported. To the extent possible, the examiner should differentiate between the symptoms attributable to the Veteran’s service-connected pes planus and those related his complex regional pain syndrome. A complete rationale should be provided for all opinions and conclusions expressed. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson