Citation Nr: 20002140 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 14-44 053A DATE: January 9, 2020 REMANDED Entitlement to an increased rating in excess of 10 percent for service-connected spinal cord injury around T-6 with slight limitation of motion now with lumbar degenerative joint disease is remanded. Entitlement to service connection for erectile dysfunction as secondary to the service-connected spinal cord injury around T-6 with slight limitation of motion now with lumbar degenerative joint disease is remanded. Entitlement to service connection for bowel and bladder dysfunction as secondary to the service-connected spinal cord injury around T-6 with slight limitation of motion now with lumbar degenerative joint disease is remanded. Entitlement to service connection for cervical spine disability with residual upper extremity weakness, to include as secondary to the service-connected disability of spinal cord injury around T-6 with slight limitation of motion now with lumbar degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1986 to February 1989. This matter is on appeal from a September 2013 rating decision. 1. Entitlement to an increased rating in excess of 10 percent for service-connected spinal cord injury around T-6 with slight limitation of motion now with lumbar degenerative joint disease is remanded. The Veteran last underwent a VA examination for his service-connected spine disability in August 2013. Since then, however, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the case of Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), which affects the Veteran’s case. In Correia, the Court determined that additional requirements must be met prior to finding that a VA examination is adequate. See id. Although the Board sincerely regrets the delay, it is necessary to ensure that the Veteran’s VA examination regarding his increased rating claim for service-connected spine disability complies with the requirements of the holding in Correia. Moreover, in his September 2013 Notice of Disagreement, the Veteran reported experiencing flare-ups of the back that cause him pain. Therefore, upon remand, the new examiner must elicit relevant information as to the Veteran’s flare-ups of the back and ask him to describe the additional functional loss he suffers during these flares, and then either (1) estimate the functional loss due to flares based on all the evidence of record including lay information, or (2) explain why she could not do so based on a lack of knowledge in the medical community. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, on remand, a new examination addressing the above noted concerns should be obtained. 2. & 3. Entitlement to service connection for erectile dysfunction as secondary to the service-connected spinal cord injury around T-6 with slight limitation of motion now with lumbar degenerative joint disease and entitlement to service connection for bowel and bladder dysfunction as secondary to the service-connected spinal cord injury around T-6 with slight limitation of motion now with lumbar degenerative joint disease are remanded. Secondary service-connection etiology opinions were obtained in August 2013 for the Veteran’s erectile dysfunction and bowel and bladder dysfunction service connection claims. However, in June 2019, the United States Court of Appeals for Veterans Claims (the Court) issued a decision in Ward v. Wilkie, which affects the Veteran’s claim. 31 Vet. App. 233 (2019). In Ward, the Court held that secondary service connection is warranted for “any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence.” Id. at 239. Upon review of the opinion, the Board finds that the August 2013 etiology opinions do not comport with the holding in Ward. Therefore, upon remand, new etiology opinions that comport with the holding in Ward must be obtained. 4. Entitlement to service connection for cervical spine disability with residual upper extremity weakness, to include as secondary to the service-connected disability of spinal cord injury around T-6 with slight limitation of motion now with lumbar degenerative joint disease is remanded. A negative direct service connection etiology opinion for this claim was obtained in August 2013. The examiner opined that the claimed cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury because the service treatment records did not indicate any cervical spine injury and the Veteran had degenerative changes leading to a recent cervical ACDF that is likely multifactorial in nature and not directly caused by service. The Board finds this opinion inadequate inasmuch as the examiner failed to consider the Veteran’s lay statements regarding in-service onset of related symptomatology and provide a sufficient rationale. See Form 9. Moreover, the Veteran has alternatively asserted that the cervical spine disability stems from the service-connected spine disability, which was caused by the in-service motor vehicle accident that the Veteran initially claimed caused his cervical spine disability. However, no secondary service connection etiology opinion has been obtained. Therefore, upon remand, new etiology opinions must be obtained. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a) The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected spine disability under the rating criteria. (b) The spine should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing. (c) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or on repeated use overtime. The examiner should assess such additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a VA examination with a new examiner to determine the nature and etiology of his erectile dysfunction. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder and examining the Veteran, for the Veteran’s erectile dysfunction, the examiner is specifically instructed to provide the following information: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s erectile dysfunction BEGAN IN or is related to his time in the service, yes or no? (b) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s erectile dysfunction was: (i) CAUSED BY HIS SERVICE-CONNECTED spine disability, (ii) any other service-connected disability, or (iii) medicine taken for his other service-connected disabilities to include lisinopril taken for hypertension, yes or no? (c) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s erectile dysfunction underwent any incremental increase in disability, regardless of its permanence, due to: (i) the service-connected spine disability, (ii) any other service-connected disability, (iii) medicine taken for his other service-connected disability, to include lisinopril taken for hypertension yes or no? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT 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, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. Schedule the Veteran for a VA examination with a new examiner to determine the nature and etiology of his bowel and bladder dysfunction. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder and examining the Veteran, for the Veteran’s bowel and bladder dysfunction, the examiner is specifically instructed to provide the following information: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s bowel and bladder dysfunction BEGAN IN or is related to his time in the service, yes or no? (b) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s bowel and bladder dysfunction was CAUSED BY HIS SERVICE-CONNECTED spine disability, or any other service-connected disability, yes or no? (c) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s bowel and bladder dysfunction underwent any incremental increase in disability, regardless of its permanence, due to the service-connected spine disability or any other service-connected disability, yes or no? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT 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, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. Schedule the Veteran for a VA examination with a new examiner to determine the nature and etiology of his cervical spine disability. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder and examining the Veteran, for the Veteran’s cervical spine disability, the examiner is specifically instructed to provide the following information: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s cervical spine disability BEGAN IN or is related to his time in the service, yes or no? (b) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s cervical spine disability was CAUSED BY HIS SERVICE-CONNECTED spine disability, or any other service-connected disability, yes or no? (c) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s cervical spine disability underwent any incremental increase in disability, regardless of its permanence, due to the service-connected spine disability or any other service-connected disability, yes or no? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT 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, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 5. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38C.F.R.§§3.158, 3.655. 6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINERFOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Cho, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.