Citation Nr: 1809018 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-14 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for fibromyalgia. 4. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome, with degenerative joint disease, left knee. 5. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome, with degenerative joint disease, right knee. 6. Entitlement to a disability rating in excess of 10 percent for trochanteric bursitis, left hip (based on limitation of extension). 7. Entitlement to a disability rating in excess of 10 percent for trochanteric bursitis, right hip (based on limitation of extension). 8. Entitlement to a compensable disability rating for trochanteric bursitis, left hip (based on limitation of flexion). 9. Entitlement to a compensable disability rating for trochanteric bursitis, right hip (based on limitation of flexion). 10. Entitlement to a compensable disability rating for trochanteric bursitis, left hip (based on impairment of abduction, adduction or rotation). 11. Entitlement to a compensable disability rating for trochanteric bursitis, right hip (based on impairment of abduction, adduction or rotation). 12. Entitlement to a disability rating in excess of 10 percent for Morton's neuroma, right foot. 13. Entitlement to special monthly compensation (SMC), based on the need for aid and attendance or housebound status, due to service connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2004 to August 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO) in Atlanta, Georgia. In January 2016, the Veteran testified at a videoconference hearing before a Veterans Law Judge. A transcript of that hearing is of record. In a November 2017 letter, the Veteran was notified that the Veterans Law Judge who conducted the hearing was no longer employed at the Board. Pursuant to 38 U.S.C. § 7101 (c) (2012), the Veteran was offered an opportunity to testify at a hearing before a Veterans Law Judge who could participate in making a final determination on her claim. The Veteran responded in that she did not wish to appear at another Board hearing. Therefore, the Board finds that VA has fulfilled its duty in providing the Veteran an opportunity for another hearing. When this case was before the Board in May 2016, the above-noted issues were remanded for additional development. The case has now been returned to the Board for further appellate action. REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran's claims are decided. Service Connection Claims Initially, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). When this case was most recently before the Board in May 2016, the issues of entitlement to service connection for a left foot disability, lower back disability, and fibromyalgia were remanded in order to obtain a VA examination and medical opinion addressing the etiology of the claimed disabilities. Thereafter, in January 2017 the Veteran underwent VA examinations wherein she was diagnosed with degenerative changes of the first metatarsophalangeal joint in the left foot, a lumbosacral strain with degenerative joint disease, and fibromyalgia. However, the examiners found the Veteran's disabilities were less likely than not either incurred or aggravated in service, or caused by service connected disabilities. With respect to the Veteran's left foot disability, she has indicated that her treating physician informed her that she had sustained a stress fracture; however, the January 2017 VA examiner found the Veteran did not have sufficient radiographic evidence to indicate she had ever sustained a stress fracture. Unfortunately, the examiner did not indicate whether the diagnosed disability, degenerative changes of the left foot, was either incurred in service or caused by the Veteran's service-connected right foot disability. As such, a remand is necessary in order to address this issue. With regard to the Veteran's claimed lumbar spine disability, the January 2017 VA examiner initially found the lumbosacral strain was less likely than not incurred in service. In support of this conclusion, the examiner indicated the Veteran did report experiencing back pain in service, but in her January 2006 compensation and pension examination did not complain of back pain. The examiner also stated the Veteran had an MRI of the back in February 2006 that was normal, and her current x-rays show mild degenerative joint disease. Thereafter, in a March 2017 addendum medical opinion, the examiner also found the Veteran's lumbar spine disability was less likely than not caused or aggravated by either her service-connected bilateral hip or bilateral knee disabilities. In support of this opinion, the examiner stated the Veteran's back disability shows "minimal involvement," and her knees and hips would not cause added stresses to the back. The examiner indicated the Veteran's back disability was consistent with her age. The Board finds these medical opinions to be woefully insufficient. In sum, the examiner wholly failed to explain how or why the evidence noted above led to his conclusions. He also blindly stated the Veteran's bilateral knee and hip disabilities could not cause a lumbar spine disability, with no medical data or studies to support such a conclusion. For these reasons, the Board finds an addendum medical opinion is necessary. Finally, with respect to the Veteran's fibromyalgia, the January 2017 VA examiner determined this disability was less likely than not incurred in service. At the outset, the examiner briefly chronicled the Veteran's medical history. The examiner then indicated it was less likely than not the Veteran's fibromyalgia was secondary to her treatment for left hip bursitis, bilateral knee patellofemoral pain syndrome, or a lower back strain. The examiner stated there was no documented trauma to the joints. The examiner also noted that fibromyalgia is a common disorder characterized by widespread pain, and the causes of the disability are unknown. Here, the examiner failed to explain in any meaningful way how she came to these conclusions. On their face, the facts cited by the examiner would appear to contradict her conclusions. Specifically, the examiner noted that fibromyalgia is a condition characterized by widespread joint pain, and the cause of the disability is unknown. The examiner then noted the Veteran has been treated for widespread joint pain, and that she had not experienced any specific trauma to cause such pain. Most importantly, the examiner did not explain how or why the Veteran's in-service reports of widespread joint pain could not have represented the onset of her fibromyalgia as alleged by the Veteran. Further, as noted in the Board's May 2016 remand, the Veteran's treating physician has specifically indicated her fibromyalgia was triggered by injuries incurred in the military, but did not provide a rationale to support that conclusion. In her January 2017 medical opinion, the VA examiner failed to address this medical finding. Based on the foregoing insufficiencies, the Board finds an addendum medical opinion must be provided for this issue as well. Increased Rating Claims In a recent decision, Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to 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. While the Veteran has bilateral knee and hip disabilities, such that range of motion measurements for the opposite undamaged joint is impossible, under Correia there is a need for testing for pain on both active and passive motion and, if possible, when weight-bearing and nonweight-bearing. The Veteran most recently underwent a VA examination of her knees, hips, and right foot in January 2017; however, the examiners failed to conduct Correia compliant testing. Further, in a recent decision, Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court explained that VA examiners must do all that can be reasonably done to become informed about a veteran's reported musculoskeletal flare-ups prior to providing an opinion on functional loss during flares. Specifically, the Court found an examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, before concluding an assessment of the functional loss during flares could not be provided without resorting to speculation. In this case, the January 2017 knee and hip examiner failed to address whether the Veteran experiences flare-ups; however, the evidence of record shows the Veteran has, on numerous occasions, reported experiencing flare-ups of joint pain. Further, the January 2017 foot examiner chronicled the Veteran's reports of right foot flare-ups. Specifically, the Veteran indicated she experiences painful flare-ups all the time, with mornings being especially bad. The Veteran also stated that when she experiences a flare-up she is not able to walk long distances, and needs the assistance of a cane. The Veteran also remarked that she feels like she would like her toes to be amputated. The examiner later determined the Veteran's disability did not cause such functional impairments that she would be equally well served by an amputation with suitable prosthesis, but did not explain whether the Veteran would experience functional impairments equal to someone who had undergone a foot amputation in light of her very frequent and severe flare-ups. Therefore, a remand is also necessary to elicit relevant information as to the Veteran's musculoskeletal flares, to include the additional functional loss due to flares based on all evidence of record-to specifically include the Veteran's lay information-or explain why, with this information, such an estimation cannot be offered. SMC Claim Finally, the Board notes the issue of entitlement to a SMC rating is intrinsically intertwined with the above-noted remanded issues. This follows, because increases in the Veteran's presently service-connected disabilities may result in the award of additional special monthly compensations. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected bilateral hip, knee, and right foot disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. The foot examiner must specifically indicate whether the Veteran's right foot flare-ups cause sufficient functional impairments as to render her as functionally impaired as a person who has undergone a right foot amputation with placement of a suitably functioning prosthetic. 3. Also obtain addendum medical opinions from the January 2017 VA examiners that assessed the Veteran's left foot, lumbar spine, and fibromyalgia disabilities. Relative to the Veteran's claimed left foot disability, based on a review of her pertinent history and the examination results, the examiner should state an opinion with respect to whether there is a 50 percent or better probability that any left foot disability, to specifically include the noted metatarsophalangeal degenerative changes: a) originated during her period of active service or is otherwise etiologically related to her active service; b) was caused by her service-connected right foot disability; or c) was permanently worsened by her service-connected right foot disability. With respect to the Veteran's claimed lumbar spine disability, based on a review of her pertinent history and the examination results, the examiner should state an opinion with respect to whether there is a 50 percent or better probability that any lumbar disability, to specifically include the diagnosed lumbar strain with degenerative joint disease: a) originated during her period of active service or is otherwise etiologically related to her active service; b) was caused by her service-connected bilateral knee and hip disabilities; or c) was permanently worsened by her service-connected bilateral knee and hip disabilities. Finally, with regard to the Veteran's fibromyalgia, based on a review of her pertinent history and the examination results, the examiner should state an opinion with respect to whether there is a 50 percent or better probability that the disability: a) originated during her period of active service or is otherwise etiologically related to her active service; b) was caused by her service-connected bilateral knee and hip disabilities; or c) was permanently worsened by her service-connected bilateral knee and hip disabilities. The examiners must provide complete rationales for all proffered opinions. Specifically, the examiners must fully articulate how and why the relevant facts cited in their medical opinions led to their conclusions, and should support their medical conclusions with accepted medical data and theories. If a physician is unable to provide any required opinion, he or she should explain why. If a physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. 4. Finally, undertake any other development determined to be warranted, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, furnish to the Veteran and her representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ T. REYNOLDS 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).