Citation Nr: 18157629 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 08-06 492 DATE: December 13, 2018 REMANDED The claim of entitlement to a disability rating in excess of 10 percent for residuals, stress fracture of left mid tibia (left leg disability), is remanded. The claim of entitlement to service connection for a back disability, to include as secondary to service-connected left leg disability, is remanded. The claim of entitlement to service connection for a left shoulder disability, to include as secondary to service-connected left leg disability, is remanded. The claim of entitlement to service connection for a left foot disability, to include as secondary to service-connected left leg disability, is remanded. The claim of entitlement to service connection for hemorrhoids, to include as secondary to service-connected left leg disability, is remanded. The claim of entitlement to service connection for left ear hearing loss is remanded. The claim of entitlement to service connection for right ear hearing loss is remanded. The claim of entitlement to service connection for tinnitus is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is also remanded for additional development. Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from August 1979 to November 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript of the hearing has been associated with the Veteran’s electronic claims file. The Board notes that in a May 2014 written statement, the Veteran requested a hearing before the Board. Accordingly, the Veteran was scheduled for a Board hearing in July 2018. In July 2018, prior to the scheduled hearing, the Veteran withdrew his request for a hearing. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claims currently on appeal. The Board remanded this case in both April 2015 and October 2016 for further development. The issues have since returned for further appellate consideration. The Board notes that the Veteran also perfected an appeal for entitlement to service connection for an acquired psychiatric disorder and a left knee disability. During the pendency of the appeal, in an August 2018 rating decision, the RO granted service connection for both disabilities. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As such, these issues are not before the Board. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Increased Rating Claim The Veteran contends that he is entitled to an increased rating for his left leg disability. A review of the record shows that the Veteran underwent VA examinations relevant to this claim in July 2006, January 2011, and January 2014. The Board notes that since these examinations, two precedential opinions have been issued by the United States Court of Appeals for Veterans Claims (Court). These opinions necessitate retroactive opinions in this case. The record reflects that the Veteran was most recently afforded VA examinations for his knees and ankles in July 2018. The Board finds that, as the July 2018 opinions are not in full compliance with the two precedential opinions, a remand for new examinations is also warranted. On July 5, 2016, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that 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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia interprets 38 C.F.R. § 4.59 to establish additional requirements that must be met prior to finding that a VA examination is adequate. The July 2006 examination of the joints notes evidence of pain during range of motion testing of the left knee; however, the examination does not contain the point at which the Veteran experienced pain during range of motion testing. Furthermore, it appears that range of motion testing, both active and passive, was conducted only on the left knee. Additionally, the January 2014 examination report for the knees includes only active range of motion findings and do not include range of motion findings for passive range of motion. Similarly, the July 2018 examination report for the knees reflects active range of motion findings and notes that passive range of motion testing was conducted; however, no results of passive range of motion testing were provided. Furthermore, the examination does not contain the point at which the Veteran experienced pain during range of motion testing. Finally, the July 2018 examination for the left ankle also does not fully comply with the requirements of Correia, as the examination does not contain the point at which the Veteran experienced pain during range of motion testing, and the examination report does not include the results of passive range of motion testing for both ankles. Accordingly, as the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a retroactive opinion is warranted. Furthermore, the Court issued another decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare (i.e., the frequency, duration, characteristics, severity, or functional loss), and such opinion cannot be based on the insufficient knowledge of the specific examiner. On VA examination in July 2006, the Veteran reported that his left leg hurt three or four days a week, depending on the weather or his activity. He denied flare-ups, but indicated that pain was increased by going up steps. While the Veteran denied flare-ups, his description of experiencing increased pain when going up steps suggests that he actually did experience flare-ups of the left leg. The Board notes that the examination report does not include an opinion as to additional functional loss as a result of the increased pain the Veteran experienced when going up steps. On VA examination in January 2014, the Veteran reported experiencing intermittent “flashes” of pain down the left leg/shin; thus, suggesting flare-ups of the left leg. The examiner did not provide an opinion as to additional functional loss during a flare-up of the Veteran’s left leg disability. Finally, on VA examination in July 2018 for his knees, the Veteran reported that he experienced flare-ups of the left knee almost on a daily basis. The examiner indicated that the examination was not being conducted during a flare-up, and therefore was unable to say without mere speculation as to whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups. As the record reflects that, during the previous VA examinations, the Veteran reported experiencing flare-ups of the left leg and the left knee, an opinion as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups is necessary. Therefore, a retroactive opinion to address limitation of motion during flare-ups is warranted in light of Sharp. Thus, in light of the foregoing reasons, the Board finds that the previous VA examination reports for joints, knee, lower leg, and ankle conditions are not in strict compliance with the Court’s decisions in Correia and Sharp, and as such, are not adequate for adjudication purposes. Accordingly, on remand, the Veteran should be provided new VA examinations to determine the current level of severity of all impairment resulting from his left leg disability – to include retroactive opinions in light of Correia and Sharp. Service Connection Claims The Veteran contends that he is entitled to service connection for a back disability, a left shoulder condition, a left foot disability, and hemorrhoids, all to include as secondary to his service-connected left leg disability. The Veteran also contends that he is entitled to service connection for bilateral hearing loss and tinnitus. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the October 2016 remand, the Board directed that a new VA examination be provided for the back, left shoulder, and left foot disability claims, as the previous examination conducted in July 2006 was found to be inadequate. Specifically, the July 2006 VA examiner failed to address the Veteran’s statement, in support of his back claim, that he suffered a fall in 2000 as a result of his service-connected left leg disability. Furthermore, the examiner failed to address the Veteran’s 1985 statement that suggests that his doctor told him that he may develop arthritis in his back due to his service-connected left leg disability. Additionally, as regards to the left shoulder claim, the July 2006 VA examiner did not address the Veteran’s report of left shoulder symptoms during basic training due to bends, thrusts, and being “thrashed.” See January 2013 DRO hearing transcript. As regards to the left foot claim, the examiner did not take into account the Veteran’s description and accounts of pain and stiffness in his left ankle following his in-service injury to his left tibia. See September 1979 service treatment record. Finally, with regard to all three claimed disabilities, the Board noted that the July 2006 VA examiner failed to address whether these disorders were aggravated by the service-connected left leg disability. Pursuant to the Board’s remand instructions, the Veteran was provided VA examinations for his back, left shoulder, and left foot disabilities in July 2018 ; however, the examination reports do not reflect that the examiner addressed all of the Veteran’s statements and reports related to each claimed disability as noted by the Board in the October 2016 remand. Furthermore, with specific regard to the back claim, the July 2018 VA examiner did not address whether the Veteran’s back disability was or was not aggravated beyond the natural scope of the process by his service-connected left leg disability. The Court has indicated that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b). See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Court has also indicated that an opinion that there is “no etiological relationship” may be insufficient to address the question of aggravation. See Allen, 7 Vet. App. at 449 (“[I]t is a big stretch of the English language to construe the phrase ‘no etiological relationship between the veteran’s service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis’ as encompassing aggravation, especially considering the use of the word ‘onset.’”). Thus, based on the foregoing, as it pertains to the back, left shoulder, and left foot disability claims, the Board finds that the July 2018 VA medical opinions are inadequate. Therefore, on remand, an addendum opinion for each disability is warranted to address the above. Additionally, as regards to the claims for bilateral hearing loss, tinnitus, and hemorrhoids, in the October 2016 remand, the Board directed that an examination be conducted for each claimed disability, as such examinations had not yet been provided. The Veteran was afforded a VA examination for his hearing loss and tinnitus claims in July 2018. The record reflects that the Veteran had left ear hearing loss prior to his entry into active service; however, the July 2018 audiological examination did not sufficiently address the matter of whether the pre-existing left ear hearing loss was aggravated beyond the natural progression of the disease during the Veteran’s service. Furthermore, the July 2018 examiner did not sufficiently address whether the Veteran had right ear hearing loss or tinnitus that were directly related to his active service. The examination report notes that the examiner was unable to provide opinions on the etiology of the Veteran’s left ear hearing loss, right ear hearing loss, and tinnitus without resorting to mere speculation, as there were reports of significant noise exposure both during and after military service. Furthermore, the record reflects that the Veteran suffered several ear infections, as well as left earaches and right ear pain during his active service. See September and October 1979 service treatment records. The July 2018 examiner did not address the issue of these ear infections and earaches. Furthermore, the examiner did not address post-service VA medical records indicating an assessment of left otomycosis, as well as fungal infections in the left ear canal. See April 2013 VA treatment record. Thus, given the inadequacies in the July 2018 VA examination, the Board finds that an additional VA examination for the Veteran’s claims of hearing loss and tinnitus is warranted. The Veteran was also afforded a VA examination for his claimed condition of hemorrhoids in July 2018. The examiner ultimately concluded that the claimed condition was not caused by service or his service-connected left leg disability, and also, was not caused by medication used to treat the service-connected left leg disability. However, the examiner did not provide an opinion as to whether the Veteran’s claimed condition of hemorrhoids was aggravated by the medication prescribed. Thus, the Board finds that the July 2018 opinion is inadequate. Therefore, on remand, an addendum opinion addressing whether the Veteran’s hemorrhoid condition is aggravated by any medication taken for the service-connected left leg disability should be obtained. Entitlement to TDIU The Board finds that the issue of the Veteran’s entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Accordingly, the issue of entitlement to a TDIU must be held in abeyance pending adjudication of the aforementioned claims. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are “inextricably intertwined” where action on one matter could have a “significant impact” on the other). Finally, on remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for examinations for knee, lower leg, and ankle conditions to determine the current level of severity of all impairment resulting from his service-connected left leg disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the 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 why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran’s ordinary activity, including his ability to work. The examiner should determine whether the Veteran’s range of motion results from the previous VA examinations, as indicated above, would have been reduced if tested in both active and passive motion and in weight-bearing and non-weight-bearing. To the examiner’s best ability, the additional range of motion loss should be described in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner should 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 should identify the extent of the Veteran’s functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. After completion of the above, the examiner must specifically interview the Veteran about the nature of the flare-ups that he reported in the July 2006, January 2014, and July 2018 VA examinations; assess this impairment during flare-ups, and provide a retroactive opinion as to any additional functional loss during flare-ups at that time, and provide an estimate of that loss in terms of degrees reduction in range of motion. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Then, return the claims file to the examiner who conducted the July 2018 examination for the back, left shoulder, and left foot disabilities. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the July 2018 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. For each currently diagnosed back, left shoulder, or left foot disorder, the examiner must offer an opinion as to whether it is at least as likely as not that such disorder manifested during, or as a result of active military service, to include as secondary to his service-connected left leg disability. The examiner must address all of the Veteran’s statements and reports in relation to each claimed disability, as indicated above. In consideration of all of the Veteran’s statements and reports, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that any currently diagnosed disorder was either caused or aggravated beyond the natural progression by the Veteran’s service-connected left leg disability. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Return the claims file to the examiner who performed the July 2018 examination for the claimed condition of hemorrhoids. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the July 2018 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner must provide an opinion as to whether it is at least as likely as not that medication prescribed to treat the Veteran’s service-connected disabilities, to include the left leg, aggravated any currently diagnosed condition related to hemorrhoids. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. Then, schedule the Veteran for an audiological examination to evaluate his claimed bilateral hearing loss and tinnitus. The examiner must review the claims file and all previous VA examination reports. The examination report should also show consideration of the Veteran’s documented medical history and assertions/complaints. All indicated studies, should be completed, and all clinical findings reported in detail. The examiner is asked to provide an opinion as to the following: Left Ear Hearing Loss: (i) Please state whether it is as least likely as not that the Veteran’s pre-existing left ear hearing loss underwent an increase in disability during service (beyond the natural progression of the disease), to include as a result of routine noise exposure or another ear condition. In answering this question, the examiner must address the service treatment records documenting treatment for ear infections and left earaches, as well as post-service records indicating an assessment of left otomycosis, as well as fungal infections in the left ear canal. Right Ear Hearing Loss: (i) Please state whether the Veteran currently has right ear hearing loss for VA compensation purposes and if so, whether it is as least likely as not related to an incident of his active duty service, to include routine noise exposure or another ear condition. In answering this question, the examiner must address the service treatment records documenting treatment for ear infections, right ear pain, and right canal swelling. Tinnitus: (i) Please state whether it is as least as likely as not that the Veteran’s tinnitus is related to an incident of his active duty service, to include routine noise exposure or another ear condition. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (CONTINUED ON NEXT PAGE) 6. After completing all indicated development, the Veteran’s claims should be readjudicated, to include the issue of entitlement to a TDIU, based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel