Citation Nr: 1806835 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-08 376 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for thoracolumbar spine compression deformity with degenerative disc disease of multiple levels. 2. Entitlement to service connection for cervical spine disorder, to include as secondary to thoracolumbar spine compression deformity with degenerative disc disease of multiple levels. 3. Entitlement to service connection for a skin disorder. 4. Entitlement to service connection for left toenail fungus. 5. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to October 1988 and from November 2004 to July 2006 with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction was subsequently transferred to the RO in Los Angeles, California. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Upon review of the claims file, the Board believes that additional development on the claims on appeal is warranted. Thoracolumbar Spine The Court of Appeals for Veterans Claims (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 nonweight-bearing conditions, and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The Veteran has been afforded various examinations pertaining to his service-connected lumbar spine disability, the last being in March 2010. Review of these examination reports reveals that range of motion testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted. In light of Correia, these VA examinations are insufficient. Accordingly, the Veteran should be afforded a new examination to determine the nature and severity of his service-connected thoracolumbar spine disability, to include consideration of the range of motion testing requirements of Correia. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination). Cervical Spine The Veteran contends that his cervical spine disability originated in service, resulting from strenuous in-service duties and wearing body armor, or, in the alternative, is secondary to his service connected thoracolumbar spine disability. While service treatment records do not document complaint or treatment of neck pain or cervical spine disability, VA treatment records shortly after discharge reflect his report of chronic neck pain which he alleged began in 2005. A July 2008 x-ray of the neck revealed mild to moderate degenerative changes from C5 to C7. The Veteran was afforded a VA examination in 2010, at which time he was diagnosed with cervical spondylosis. The examiner opined that the Veteran's cervical spondylosis was not caused by or a result of his thoracolumbar spine condition, given that there was no evidence in spine literature to support a causal relationship. The examiner further noted that the cervical spine was separate from the lumbar and lower thoracic spine by multiple thoracic vertebral segments which were relatively rigid, and thus any abnormal movement in the lower spine would not affect movement in the upper cervical spine. Therefore, he opined that the Veteran's lumbar/thoracic condition did not cause or aggravate the Veteran's primary cervical condition. However, the examiner did not provide an opinion as to whether the Veteran's cervical spine disability had its onset in service or is otherwise related to service. Once VA undertakes to provide an examination, it is obligated to insure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Given the Veteran's report of onset of cervical spine disability in service and chronic neck pain since service, and the records documenting current cervical spine disability, the Board believes that another examination is necessary to resolve the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Left Toenail Fungus The Veteran also contends that he suffers from left toenail fungus that originated in service. The Board notes that the Veteran is service-connected for dermatophytosis of the right great toe. However, service treatment records also document complaints and treatment related to the left foot/toenails. In October 2005, it was noted that the feet showed fungal changes in the web spaces. He was assessed with dermatophytosis and tinea pedis. In March 2006, a dystrophic left great toenail was noted. Dermatophytosis and nail onychomycosis was indicated. Following service, VA treatment records dated in 2010 and 2011 note assessment of onychomycosis and tinea pedis. The Veteran was afforded an examination in March 2010, when he was diagnosed with right great toenail fungal infection. It is unclear from this report as to whether the Veteran had a left toenail fungal condition or other skin condition involving the left foot or toenails at that time. Given the in-service notations of dermatophytosis, tinea pedis and onychomycosis that involved both feet, and post-service VA treatment records documenting onychomycosis and tinea pedis, the Board believes that an examination is necessary to resolve the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Skin Disorder The Veteran reports that, since his service in Iraq, he has experienced various skin conditions including rashes and skin nodules that were not present before service. The Veteran's service treatment records document a variety of skin-related complaints, other than of the feet and toenails. In January 2005, it was noted that the Veteran was living in a tent with an ant infestation. Several erythematous papulonodular lesions to the posterior neck, upper back, upper chest, and forearms were documented. He was assessed with insect bites versus scabies. In June 2005, a rash of the left scrotum was indicated, and he was assessed with dermatitis. In February 2006, a rash on the back of the neck and skin bumps of the right forearm was noted. He was assessed with folliculitis. Post service VA treatment records note continued skin-related complaints. For example, in May 2010, a cherry angioma and folliculitis were indicated. The Veteran has also submitted photographs of his skin complaints. The Veteran was afforded a VA examination in 2012, at which time the examiner only address the service-connected right dermatophytosis, and only dermatophytosis of the nail was indicated. It is unclear as to whether the examiner considered whether the Veteran had, or had at any point during the pendency of the claim, a skin disorder other than of the right foot and toes, and if so, whether it is related to service. Given the in-service notations including dermatitis and folliculitis, and post-service VA treatment records documenting various skin disorders including folliculitis, the Board believes that an examination is necessary to resolve the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Bilateral Knee The Veteran also contends that he is entitled to service connection for bilateral knee disability, which he alleges is related to his active service. Prior to the Veteran's second period of active service, a VA treatment report dated on September 7, 1999 reflects that the Veteran began to experience bilateral knee crepitus 3 weeks prior after he hit his knees on a conference table. He was assessed with a history of bilateral knee crepitus and possible patellofemoral syndrome. The Board notes that there is a report of records from the Office of the Adjutant General of the State of New York reflecting that the Veteran was ordered to active duty for special work for the period from August 9, 1999 to September 7, 1999 and from September 9, 1999 to September 30, 1999, essentially covering the time period in which the Veteran had a documented knee injury and treatment. The Veteran's service treatment records for his second period of active duty from 2004 to 2006 document several knee complaints. In October 2005, he reported left knee spasm. In March 2006, he reported right knee pains under the knee cap. He was assessed with chondromalacia patella. Following discharge from active duty, on report of medical history for National Guard retention in January 2007, the Veteran reported knee pain and indicated that he fell several times in Iraq. Post-service VA treatment records reflect that the Veteran continued to report and seek treatment and physical therapy for chronic knee pain. However, the Veteran has not been afforded a VA examination to determine the nature and etiology of the claimed bilateral knee disorder. Given the in-service complaints and notations related to both knees, and post-service VA treatment records documenting potential bilateral knee disability the Board believes that an examination is necessary to resolve the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records, including updated VA treatment records. 2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected thoracolumbar spine disability. The claims file should be made available to the examiner for review in connection with the examination. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 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. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should also indicate if there is ankylosis of the spine or resultant neurological impairment. If so, the examiner should identify the nerve or nerves involved and determine the manifestations and severity. In addition, the examiner should describe the frequency and duration of any incapacitating episodes due to the thoracolumbar spine disability, if applicable. The examiner should also comment on the impact of the Veteran's thoracolumbar spine disability on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed cervical spine disability. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all cervical spine disorder(s). Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any cervical spine disorder manifest in service or within one year of discharge from service, or is otherwise medically related to service. The examiner is asked to consider and address the Veteran's statements regarding the onset of neck/cervical spine pain in service related to his various service duties. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed left toenail fungus. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all skin disorder(s) of the left foot, including any skin disorder present since service that has resolved. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any left foot skin disorder manifest in service, or is otherwise medically related to service. In providing the requested opinion, the examiner is asked to address the reports of dermatophytosis, tinea pedis and onychomycosis in service in 2005 and 2006. The examiner is asked to consider and address the Veteran's statements regarding the onset of left foot/toenail skin symptoms in service. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed skin disorder, other than of the feet and toenails. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all skin disorder(s), other than of the feet/toenails, including any skin disorder present since service that has resolved. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any skin disorder manifest in service, or is otherwise medically related to service. In providing the requested opinion, the examiner is asked to address the various skin related complaints and treatment in service, including for rash, dermatitis and folliculitis. The examiner is asked to consider and address the Veteran's statements regarding the onset of skin symptoms in service. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed bilateral knee disorder. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all right and left knee disorder(s). Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any knee disorder manifest in service, or is otherwise medically related to service. In providing the requested opinion, the examiner is asked to address the 1999 VA treatment report while the Veteran was on active duty for special work, as well as the 2005-2006 treatment records documenting knee complaints and assessment of chondromalacia patella. The examiner is asked to consider and address the Veteran's statements regarding the onset of knee injury and symptoms in service. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 7. The AOJ should undertake any additional development it deems warranted. 8. Then, the AOJ should readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and her representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).