Citation Nr: 18151730 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-48 844 DATE: November 20, 2018 REMANDED Entitlement to service connection for left shoulder condition, to include as secondary to service-connected lumbar strain, is remanded. Entitlement to service connection for right shoulder condition, to include as secondary to service-connected lumbar strain, is remanded. Entitlement to service connection for neck condition, to include as secondary to service-connected lumbar strain, is remanded. Entitlement to service connection for headache condition, to include as secondary to service-connected lumbar strain, is remanded. Entitlement to an initial rating in excess of 10 percent for lumbar strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 2005 to January 2006, March 2006 to September 2006, and from October 2007 to September 2008. 1. Bilateral Shoulder Condition, Neck Condition, and Headache Condition The Veteran was scheduled for VA examinations for her bilateral shoulder, neck, and headache claims in September 2016; however, the Veteran did not show up for the scheduled examinations. In March 2017, the Veteran notified the Regional Office (RO) that she never received notification of the scheduled examinations and would like for the examinations to be rescheduled. The Board finds the Veteran’s explanation of her circumstance to be good cause, and thus, new examination appointments should be scheduled. The Board notes that the Veteran has been service-connected for lumbar strain and has provided private treatment records that show complaints of migraines, neck pain, and left and right shoulder pain. 2. Increased Rating for Lumbar Strain The Veteran contends that her service-connected lumbar condition is more severe in nature, and thus, warrants a rating in excess of 10 percent. In August 2016, the Veteran received a VA examination. The examiner provided that there was pain noted on examination that caused functional loss. However, the examiner provided he was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during flare-ups without resorting to mere speculation. The examiner rationalized that it was not possible to provide this information in terms of degrees of range of motion loss due to “pain on use or during flare-ups” due to the Veteran not experiencing a flare-up at the time of the examination. The Board finds the August 2016 VA examination is inadequate to fairly adjudicate the Veteran’s claim for increased rating. Although the VA examiner opined that he could not provide an opinion on whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during flare-ups without resorting to mere speculation, it does not appear the examiner took the Veteran’s statements regarding her functional loss during flare-ups or repetitive use into consideration. Further, the Veteran has stated that she believes her back condition is more severe and affects every aspect of her daily life. Therefore, the Board finds that a remand is required in order to obtain a new medical examination to determine the current severity of the Veteran’s lumbar condition, to include consideration of the Veteran’s limitation of functional ability after repetitive use over time and during flare-ups. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran’s claims. 2. After all outstanding records have been associated with the claims file, schedule the Veteran for a VA examination to determine the etiology of the Veteran’s neck and bilateral shoulder conditions. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of her current symptomatology, the examiner should opine as to the following: a) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left and right shoulder condition had its onset during, or is otherwise related to, her active duty service, to include her statement of constantly carrying heavy bags and occasionally falling. b) Whether it is at least as likely as not that the Veteran’s bilateral shoulder condition is caused by, or aggravated (worsened) by her service-connected lumbar condition. c) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s neck condition had its onset during, or is otherwise related to, her active duty service, to include her statement of constantly carrying heavy bags and occasionally falling. d) Whether it is at least as likely as not that the Veteran’s neck condition is caused by, or aggravated (worsened) by her service-connected lumbar condition. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 3. Then, schedule the Veteran for a VA examination to determine the etiology of the Veteran’s headache condition. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of her current symptomatology, the examiner should opine as to the following: a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s headache condition is due to her service-connected lumbar condition b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s headache condition is aggravated by her service-connected lumbar condition. “Aggravation” is defined as any worsening beyond the natural progression of the disability. c) If the Veteran’s headache condition is NOT due to or aggravated by her service-connected lumbar condition, please opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s headache condition had its onset during, or is otherwise related to, her active duty service. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 4. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of her lumbar condition. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran’s lay statements regarding her current symptoms, the examiner should identify any findings related to the Veteran’s lumbar condition and fully describe the current extent and severity of those symptoms. The examiner should discuss all findings in terms of the Schedule of Ratings for Musculoskeletal System, specifically the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria. The examiner should further determine whether any lumbar disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran for each disability. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding symptoms and the opinion should note that consideration. A clearly stated rationale must be provided for any opinion offered. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel