Citation Nr: 1808199 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-09 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for thoracolumbar strain with anterior wedging at T12. 2. Entitlement to service connection for a disability manifested by shoulder pain, to include as secondary to the service-connected thoracolumbar strain with anterior wedging at T12. 3. Entitlement to service connection for a disability manifested by knee pain, to include as secondary to the service-connected thoracolumbar strain with anterior wedging at T12. 4. Entitlement to service connection for a disability manifested by leg pain, to include as secondary to the service-connected thoracolumbar strain with anterior wedging at T12. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1998 to October 2002. This appeal to the Board of Veterans' Appeal Board (Board) arose from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, the Veteran testified during a Board videoconference hearing before a Veterans Law Judge (VLJ). The VLJ that conducted this hearing is no longer employed at the Board. A transcript of the hearing has been associated with the record. In March 2014, the Board remanded the appeal to obtain outstanding treatment records. In July 2016, the case was again remanded to schedule the Veteran for another Board hearing. In April 2017, the Veteran testified at another Board videoconference hearing before the undersigned VLJ. A transcript of the hearing has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In April 2017, the Veteran testified that he was scheduled to undergo a spine procedure. These records have not been associated with the record. Additionally, since the case was last before the Board, the United States Court of Appeals for Veterans Claims (Court) provided a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2017) 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). This holding establishes additional requirements that must be met prior to finding that a VA examination is adequate. Id. Accordingly, a recent VA examination with retrospective and current medical opinions is needed before the increase rating claim for thoracolumbar strain with anterior wedging at T12 can be addressed on the merits. Id. The Veteran asserts that his claimed shoulder, hip, and leg disabilities were caused or aggravated beyond their natural progression by his service-connected thoracolumbar strain with anterior wedging at T12. The Veteran's service treatment records indicate treatment for knee, leg, and shoulder pain. In June 2011, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed knee, shoulder, and leg disabilities. The VA examiner indicated that there were no "pathologic" diagnoses for the Veteran's claimed disabilities. In April 2017, the Veteran testified that he had received ongoing treatment for shoulder pain, hip pain, and knee pain. VA treatment records associated after the Veteran's examination indicate treatment for shoulder, knee and hip pain. The recent VA Medical Center (VAMC) problem list in his VA treatment records show diagnoses for knee athralagia and hip pain. As the Veteran has current diagnoses during the appeal period, a remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of his claimed shoulder, knee, and leg disabilities. Accordingly, the case is REMANDED for the following actions: 1. Prior to any examinations, contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA, Federal, or private health care providers. With the Veteran's assistance obtain copies of any pertinent records, to include his recent spine procedure, and add them to the claims file. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c) (2017). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After any additional records are associated with the claims file, schedule the Veteran for a VA examination by a medical doctor with the appropriate expertise to ascertain the severity of the service-connected thoracolumbar strain with anterior wedging at T12, to include retrospectively. The examiner must review the claims file and should note that review in the report. The examination report must include ranges of motion of the lumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing, 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. The VA examiner must also provide a retrospective medical opinion addressing the ranges of motion and additional functional impairment of the lumbar spine since 2009. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that Veteran's service-connected lumbar spine problems are worse than shown on some prior examinations. The examiner should provide a retrospective medical opinion with respect to the severity of the Veteran's service-connected thoracolumbar strain with anterior wedging at T12 since 2009. The examiner should describe any symptomatology associated with flare-ups and describe the frequency, duration, and severity of the disability during flare-ups. Further, the examiner should express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the lumbar spine. 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. The VA examiner must also provide a retrospective medical opinion addressing the functional impairment of the lumbar spine since 2009. 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. In particular, with respect to flare-ups and repetitive use, the examiner should identify any functional loss, to include the amount of range of motion loss, if any, that is present during flare-ups and repetitive use. If the examination is not taking place during a flare-up and/or repetitive use, the examiner should elicit information from the record and the Veteran regarding the severity, frequency, duration, and functional loss manifestations during flare-ups and repetitive use, and estimate range of motion loss, in terms of degrees. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate VA orthopedic examination to determine the etiology of his claimed shoulder, knee, and leg disabilities. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the claimed shoulder, knee, and leg disabilities were caused by the Veteran's active service. If the VA examiner finds that the claimed shoulder, knee, and leg disabilities were not at least as likely as not caused by the Veteran's active service, he or she should render an opinion regarding whether the Veteran's claimed shoulder, knee, and leg disabilities were caused or aggravated beyond their natural progression by the service-connected thoracolumbar strain with anterior wedging at T12. 4. After completing the development above, readjudicate the claims on appeal in light of all additional evidence received. If any of the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).