Citation Nr: 18156265 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-36 494 DATE: December 7, 2018 REMANDED Entitlement to increases in the ratings for a left shoulder strain (currently 0 percent prior to September 29, 2017, and 20 percent from that date) is remanded. Entitlement to increases in the ratings for lumbar strain (currently 0 percent prior to September 29, 2017, and 10 percent from that date) is remanded. Entitlement to increases in the ratings for left tibial plateau fracture (previously 0 percent prior to September 29, 2017, and 10 percent from that date) is remanded. Entitlement to a compensable rating for sinusitis is remanded. Entitlement to a compensable rating for onychomycosis of the toenails is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from May 2000 to March 2014. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Veteran reported in his July 2016 VA Form 9, substantive appeal, that he has additional evidence from his civilian doctors and physical therapists that was not included in his case file. These providers are as yet unidentified. However, as private treatment records are likely to contain pertinent information related to his increased rating claims, they should be obtained. The Board notes that the evidence currently of record does not appear to support an increase for the Veteran’s sinusitis or onychomycosis. Therefore, the Board STRONGLY ENCOURAGES the Veteran to identify and/or personally submit any private treatment records that may support his claims for increased ratings. 1. Entitlement to increases in the ratings for a left shoulder strain (currently 0 percent prior to September 29, 2017, and 20 percent from that date) is remanded. 2. Entitlement to increases in the ratings for lumbar strain (currently 0 percent prior to September 29, 2017, and 10 percent from that date) is remanded. With respect to the Veteran’s increased rating claims for his left shoulder and back disabilities, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, a review of the claims file reveals that the prior VA shoulder and back examinations do not fully comport with the requirements of Correia and therefore may be inadequate. Specifically, the Board notes that pain was noted on examination and that the examiner determined that such pain caused functional loss; additionally, there was evidence of pain with weight-bearing. Although range of motion measurements were provided, there is no indication of where pain was specifically noted (in active and weight-bearing). Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. Accordingly, new VA examinations are necessary. Additionally, when conducting evaluations for musculoskeletal disabilities, VA examiners must inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” See Sharp v. Shulkin, 29 Vet. App 26, 34 (2017). If an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination is “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 16 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). In this case, the examiner did not provide appropriate responses regarding potential additional functional loss during the reported flare-ups of the Veteran’s back disability. Further inquiry should reasonably have been attempted by the examiner to determine the impact of these flare-ups. On remand, the examiner is required to ascertain adequate information regarding the Veteran’s flare-ups and “estimate the functional loss that would occur during flares” for each disability on appeal. Id. at 33. 3. Entitlement to increases in the ratings for left tibial plateau fracture (previously 0 percent prior to September 29, 2017, and 10 percent from that date) is remanded. The record reflects that the service-connected left tibial plateau fracture is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion), but was previously rated under Code 5262 (impairment of tibia and fibula). The Board also notes that the Veteran has complained of weakness and pain in his left knee associated with his left tibial plateau fracture. Diagnostic Code 5262 provides that malunion of the tibia and fibula of either lower extremity warrants a 10 percent evaluation when the disability results in slight knee or ankle disability and a 20 percent where there is moderate knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Because Diagnostic Code 5262 is based on any resulting knee or ankle disability, an additional orthopedic examination is indicated to resolve the question as to whether the service-connected left fibula fracture residuals are implicated in the development of any current knee pathology. 4. Entitlement to a compensable rating for sinusitis. With respect to the Veteran’s increased rating claim for sinusitis, the Board finds that another VA examination is necessary. On September 2017 VA examination, the examiner determined that the Veteran did not have sinusitis; instead, he diagnosed rhinitis. However, service connection has been granted for sinusitis, even though it was not diagnosed on this examination. For these reasons, the Board finds this examination report inadequate and is remanding this issue for the Veteran to be scheduled for another examination. See Barr v. Nicholson, 21 Vet. App. 303 2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one). The matters are REMANDED for the following action: 1. The AOJ should ask the Veteran to identify the providers of all evaluations or treatment he received for the disabilities on appeal and to provide authorizations for VA to obtain the complete records of any such private evaluations or treatment; the AOJ should then obtain such identified records. If any private records are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 2. The AOJ should obtain for the record complete clinical records of all VA evaluations and treatment the Veteran has received for the disabilities on appeal (i.e., update to the present all records of VA evaluations and treatment from all VAMCs). 3. Thereafter, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left shoulder, back, and left tibial fracture. The electronic claims file must be made available to the examiner for review in conjunction with the examination. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. Based on this review of the record and the examination and interview of the Veteran, the examiner should provide opinions that respond to the following: Left Shoulder and Back Please conduct and document range of motion studies that include active AND passive motion and weight-bearing AND non-weight-bearing motion. The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. If the VA examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. All findings should be reported in detail. Please also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner is asked to request the Veteran to identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on the information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay statements regarding the observable symptoms he has experienced, including those associated with flare-ups. Left Tibial Fracture (a) Describe all symptomatology due to the Veteran’s left tibial fracture. (b) Determine whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and the degree to which any additional range of motion is lost due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. (c) Address whether the Veteran’s left fibula fracture caused nonunion with loose motion or malunion with slight, moderate, OR marked knee or ankle disability. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups. All limitation of function must be identified. If there is no pain and/or limitation of function, such facts must be noted in the report. A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. 4. Arrange for a VA sinus examination to assess the nature and current severity of the Veteran’s service-connected sinusitis. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. Based on this review of the record and the examination and interview of the Veteran, the examiner should provide opinions that respond to the following: SERVICE CONNECTION IS ALREADY IN EFFECT FOR SINUSITIS. THE EXAMINER IS THEREFORE TO ASSUME FOR PURPOSES OF THIS EXAMINATION THAT THE VETERAN HAS A CURRENT DIAGNOSIS OF SINUSITIS. (a) Describe all manifestations and the severity of the Veteran’s service-connected sinusitis in accordance with the rating criteria. (b) Provide a retrospective opinion addressing the severity of the Veteran’s service-connected sinusitis. If the examiner is unable to provide a retrospective opinion, he or she should clearly explain so in the report. (c) Does the Veteran have any additional diagnoses/disorders, to include rhinitis? If so, state whether each diagnosis/disorder is a direct symptom of his sinusitis or whether it is a separate disorder that (i) was at least as likely as not incurred in or otherwise related to the Veteran’s service or (ii) was at least as likely as not caused or AGGRAVATED (i.e., any increase in severity beyond natural progression) by his service-connected sinusitis. If the examiner is unable to make a distinction between the symptoms caused by sinusitis and the symptoms of any other disorder, then he or she should expressly so state and consider all such symptoms in the aggregate as part and parcel of the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The examiner should consider and address as necessary the Veteran’s statements regarding the frequency and symptoms of his sinusitis. A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Matta, Counsel