Citation Nr: 18158768 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-63 606 DATE: December 18, 2018 REMANDED Whether new and material evidence has been received to reopen the claim for service connection for a lumbar spine disability, to include as secondary to a left knee disability, is remanded. Entitlement to service connection for a cervical spine disability, to include as secondary to a left knee disability, is remanded. Entitlement to a rating in excess of 30 percent for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1970 to October 1976. These matters are on appeal from an October 2012 rating decision. In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. Unfortunately, the claims on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. 1. Whether new and material evidence has been received to reopen the claim for service connection for a lumbar spine disability, to include as secondary to a left knee disability, is remanded. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to a left knee disability, is remanded. The Veteran underwent VA examinations of his lumbar spine and cervical spine in August 2012. Upon examination, the VA examiner determined that the Veteran’s lumbar and cervical spine disabilities are less likely than not related to or caused by his service-connected left knee disability and opined that his spine disabilities are more consistent with normal aging and genetics. The Board finds this medical opinion to be inadequate because the examiner did not address the matter of aggravation with respect to the Veteran’s secondary service connection claims. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Moreover, the examiner failed to provide an opinion in regard to direct service connection. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the above discrepancies, the Board finds that remand is required to afford the Veteran a new VA spine examination and medical opinion so that the Board can render an informed decision on the claims. Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). 3. Entitlement to a rating in excess of 30 percent for a left knee disability is remanded. The Veteran last underwent a VA examination for his left knee disability in September 2015. At the August 2017 Board hearing, the Veteran testified that his left knee disability and its associated symptoms have worsened in severity since his last VA examination. The Board notes that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. Therefore, remand is warranted to afford the Veteran a new examination to assess the current severity of his left knee disability. See 38 C.F.R. § 3.159; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, the Board notes that since the September 2015 VA examination, the United States Court of Appeals for Veterans Claims (the Court), has clarified the requirements for musculoskeletal examinations. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that, pursuant to 38 C.F.R. § 4.59, an adequate VA joint examination must include testing the joint for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must estimate the functional loss that would occur during flare-ups. Specifically, examiners must name the precipitating and alleviating factors for the flare-ups and estimate, per the veteran’s reports, the extent to which flare-ups affect functional impairment. At the September 2015 VA examination, range of motion testing was conducted on both the Veteran’s left and right knees. However, the examination report does not specify the type of testing that was performed (i.e. active or passive, weight-bearing or nonweight-bearing), nor does it provide results for each type of test, as required under Correia. If only active range of motion testing was performed and the other tests were deemed not necessary or possible, the examiner did not expressly state this in the report. Moreover, although the examiner indicated on the examination report that the Veteran does not experience flare-ups, the medical history given by the Veteran at the examination clearly reveals that he does in fact experience flare-ups, particularly after periods of immobility, squatting, or heavy lifting. The Board notes that the examiner did not assess or attempt to estimate the additional functional loss experienced during flare-ups. Therefore, in light of the above, the Board finds that on remand, the Veteran must undergo a new examination that complies with the requirements of Correia and Sharp. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination at the Dayton, Ohio VA Medical Center with a medical professional of appropriate expertise to determine the nature and etiology of his lumbar spine and cervical spine disabilities, and to assess the current severity of his left knee disability. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. That review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. Lumbar Spine/Cervical Spine The examiner is asked to respond to the following in regard to the Veteran’s lumbar spine and cervical spine disabilities: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was incurred in or caused by an in-service injury, illness, or event? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused by his service-connected left knee disability? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was aggravated (permanently increased in severity beyond its natural progression) by his service-connected left knee disability? The examiner must set forth a complete rationale for the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. Left Knee Disability The examiner is asked to respond to the following in regard to the Veteran’s left knee disability: (a) Report the extent of the left knee disability symptoms in accordance with VA rating criteria. (b) Conduct range of motion testing of the left knee, specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner must attempt to obtain the same measurements in the opposite joint, if undamaged. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. (d) State whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and other evidence of record, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. If the examiner is unable to do so, s/he must indicate why. It should be noted that VA’s Clinicians Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flare-ups from veterans. A full and complete explanatory rationale must be provided for any opinions offered. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, s/he should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel