Citation Nr: 1808168 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-05 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to a rating in excess of 30 percent for a fragment wound of the abdomen, muscle group XIX. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran had active military service from March 1969 to April 1971. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a February 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was previously before the Board, most recently in November 2014, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. In November 2014, the Board also remanded the issues of entitlement to service connection for left and right knee disabilities for additional development. A review of the record shows that in a June 2015 rating decision, the Veteran was granted entitlement to service connection for left and right knee disabilities. There is no indication from the record that the Veteran has disagreed with either the rating or effective date assigned in that decision. Therefore, that decision constitutes a complete grant of the benefits sought on appeal and the Board has limited its consideration accordingly. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). REMAND The Board finds that additional development is required before the claims on appeal are decided. In the November 2014 remand, the Board directed that the Veteran be afforded a VA examination to determine the nature and etiology of any currently present neck disability. A review of the record shows that in June 2015, the Veteran was afforded the directed VA examination. At that time, the examiner diagnosed degenerative arthritis of the cervical spine and opined that it was less likely as not that the Veteran's neck disability was incurred in or caused by active service. In this regard, the examiner noted that the X-rays revealed the Veteran to have degenerative disc disease and arthritis disease in the cervical spine that was likely the result of aging. The examiner further noted that there was no history of an injury to the cervical spine during service, nor were there any record documenting evaluation or treatment for a cervical spine disability during the Veteran's active service. The examiner noted that even after giving consideration to the fact that the Veteran served as an infantryman, it was still far more likely that the Veteran's disability was the result of aging rather than service. The Board finds that the June 2015 VA opinion is inadequate for adjudication purposes. In this regard, the examiner did not adequately address the Veteran's lay statements regarding the onset and continuity of his symptoms. Further, the examiner relied heavily on the absence of treatment for a neck disability in service as a rationale for the negative opinion provided. Again, that finding tends to show that the Veteran did not consider the Veteran's lay statements regarding the onset and continuity of his symptoms. Additionally, the examiner did not provide any rationale for the finding that the Veteran's cervical spine disabilities were related to the aging process and not to service. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. Therefore, the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present neck disability. In April 2014, the Veteran was afforded a VA examination to assess the severity of his service-connected fragment wound of the abdomen, muscle group XIX. The VA examiner noted that the Veteran's abdominal muscular condition was not present at the time of examination. Further, the examiner noted that in the absence of flare-ups at the time of examination, it would be mere speculation to express any additional range of motion loss due to pain, weakness, fatigability, or incoordination. The examiner did not indicate what additional information could have been provided or was needed in order to furnish the requested opinion. Further, the June 2015 VA examiner did not comment on whether the Veteran experienced additional range of motion loss due to pain, weakness, fatigability, or incoordination during flare-ups. The Board notes that the United States Court of Appeals for Veterans Claims recently found that in order for an examination to comply with 38 C.F.R. § 4.40, the examiner must express an opinion regarding functional impairment and the examiner's determination in that regard 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. Further, the Court noted that an examiner may not decline to provide an opinion on the basis of speculation unless the examiner has considered all procurable and assembled data and offered a basis for that conclusion, and it must be apparent that the inability to provide an opinion without speculation reflects the limitation of knowledge in the medical community at large, as opposed to a limitation of the individual examiner. Sharp v. Shulkin, 29 Vet. App. 26 (2017) Here, the basis for the conclusion as to an inability of the April 2014 VA examiner to render an opinion without resort to speculation is unclear, particularly in light of the VA Clinician's Guide, which instructs examiners to opine as to functional loss during a flare based on the Veteran's statements. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from the Veteran's muscle injury. The Board also notes that the issue of entitlement to TDIU is inextricably intertwined with the claims remanded herein. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Additionally, current treatment records should be identified and obtained before a decision is made with regard to the issues on appeal. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of all residuals of the shell fragment wound of the abdomen, muscle group XIX. The Veteran's claims file must be made available to, and reviewed by the examiner. Any indicated studies should be conducted. Specifically, the examiner should identify all residuals attributable to the Veterans service-connected fragment wound of the abdomen, muscle group XIX, to include any muscle, orthopedic, and neurological residuals. The examination report must include pertinent ranges of motion, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner should so indicate. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The examiner should specifically discuss the severity of any muscle impairment of the fragment wound of the abdomen, muscle group XIX, in terms of slight, moderate, moderately severe, and severe, including any muscle impairment of the affected muscle groups. The examiner should also state whether there are any neurological residuals associated with the Veteran's service-connected fragment wound of the abdomen, muscle group XIX, and identify any nerves involved. If so, the examiner should also specifically discuss the extent, if any, of paralysis of the nerves involved. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently present cervical spine disabilities. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present cervical spine disability is etiologically related to active service. In forming the opinion, the examiner should presume that the Veteran is a reliable historian with regard to his reports of onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 5. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case 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). _________________________________________________ Kristin Haddock 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).