Citation Nr: 20002908 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 17-15 942 DATE: January 14, 2020 REMANDED The claim of entitlement to an evaluation in excess of 10 percent for a back disability is remanded. The claim of entitlement to service connection for a right lower extremity radiculopathy disability is remanded. The claim of entitlement to service connection for a left lower extremity radiculopathy disability is remanded. The claim of entitlement to service connection for a constipation disability is remanded. REASONS FOR REMAND The Veteran served in the U.S. Air Force from January 2002 to December 2004 and from November 2008 to December 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in November 2015. A statement of the case (SOC) was issued in February 2017, and the Veteran perfected her appeal in March 2017. The Veteran testified before the undersigned at a hearing in September 2019. A transcript of the hearing is of record. The Veteran contends that she is entitled to an evaluation in excess of 10 percent for a back disability. She also contends that she is entitled to service connection for disabilities of right lower extremity radiculopathy, left lower extremity radiculopathy, and constipation. She asserts that her disabilities of right lower extremity radiculopathy, left lower extremity radiculopathy, and constipation are secondary to her service-connected back disability. The Board finds that additional development is necessary prior to adjudication of the Veteran’s claims. The law provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2018). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). If a medical examination report does not contain sufficient information to allow an informed Board decision, then the rating board must return the report as inadequate. See 38 C.F.R. § 4.2 (2018); Bowling v. Principi, 15 Vet. App. 1, 12 (2001); Ardison v. Brown,6 Vet. App. 405, 407 (1994). Once VA undertakes to provide a medical examination, VA must provide an adequate examination or, at a minimum, notify the claimant why one will not or cannot be provided. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An examination “is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); D’Aries v. Peake, 22 Vet. App. 97, 104 (2008); Nieves–Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”). 1. Increased Rating for a Back Disability and Service Connection for Disabilities of Right and Left Lower Radiculopathy In the July 2015 rating decision currently at issue, the RO granted the Veteran service connection for a back disability with a 10 percent evaluation. The Veteran was afforded VA examinations for her back disability in July 2015 and February 2017. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held 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. Therefore, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the claims file in this case reveals that the VA examination reports of record did not address pain on both active and passive motion, nor did they address pain in nonweight-bearing. Additionally, at the July 2015 VA examination, the Veteran reported that she had flare-ups of her back disability. She stated that, in the last 12 months, she lost 2 days of work due to back issues and emergency room visits; she was able to return to work, but she struggled and had to take Valium and narcotics in order to work. The examiner gave no further description of the flare-ups or their impact, other than to say that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. When asked whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups, the examiner only answered that she was unable to say without mere speculation because the examination was not conducted during flare-up. There is no indication or description of whether the flare-ups cause functional loss, how often flare-ups occur, or what other factors limit functional ability with flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There was also no attempt to describe the impact of the flare-ups in terms of range of motion measurements. Furthermore, at the February 2017 VA examination, the VA examiner noted that the Veteran was not being examined immediately after repetitive use over time. The examiner gave no further description of the impact of repeated use over time other than to say that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. When asked whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, the examiner only answered that she was unable to say without mere speculation because the Veteran was not examined with repetitive use testing over a period of time. Therefore, in light of the above, the Board finds that a remand is necessary in order to obtain a new VA examination for the Veteran’s back disability that complies with the requirements of Correia and 38 C.F.R. § 4.59 and that adequately addresses the current status and severity of the Veteran’s back disability, including any flare-ups. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Also, because the Veteran claimed service connection for her disabilities of right lower extremity radiculopathy, left lower extremity radiculopathy, and constipation as secondary to her back disability, the issues of service connection for disabilities of right lower extremity radiculopathy, left lower extremity radiculopathy, and constipation are inextricably intertwined with the issue of the Veteran’s back disability. Thus, it would be premature for the Board to decide the claims of service connection for the Veteran’s disabilities of right lower extremity radiculopathy, left lower extremity radiculopathy, and constipation at this time. 2. Constipation Disability At the February 2017 VA examination, the examiner provided a medical opinion concerning whether the Veteran’s claimed constipation disability was at least as likely as not (50 percent or greater probability) proximately due to or the result of the back disability, including medication for this disability. However, when asked whether the Veteran’s claimed constipation disability was at least as likely as not aggravated by her back disability (including medication for this disability), the examiner only stated that there was no aggravation as no constipation was found on examination that day. The Board finds this statement insufficient as it does not consider the entire history of the Veteran’s claimed constipation disability, and it does not use the requisite standard (i.e., whether the claimed constipation disability was at least as likely as not (50 percent or greater probability) aggravated by the back disability). The Board also notes that the Veteran previously asserted that her claimed constipation disability was due to medications assigned for her service-connected back disability. She still currently claims that her constipation disability is secondary to her back disability. However, at the September 2019 Board hearing, the Veteran stated that she has discontinued the medications yet still exhibits the same symptoms. Therefore, in light of the above, the Board finds that remand is necessary in order to afford the Veteran a new VA examination for her claimed constipation disability. The examiner must address the issue of direct service connection concerning whether the claimed constipation disability was at least as likely as not (50 percent probability or greater) to have been incurred in or caused by the Veteran’s active service. The examiner must also address the issue of secondary service connection concerning whether the Veteran’s claimed constipation disability was at least as likely as not to have been proximately due to, aggravated by, or otherwise the result of her service-connected back disability. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any outstanding available VA medical records concerning the Veteran that have not yet been associated with the claims file. 2. Ensure that the Veteran is scheduled for an appropriate VA examination to determine the current status and extent of the Veteran’s service-connected back disability. The examination should be conducted by a VA examiner who has not previously examined the Veteran, and the examiner must review the claims file in conjunction with the examination. The examiner should describe the nature and severity of all manifestations of the Veteran’s back disability. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of flexion and extension. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree of flexion and/or extension at which such pain begins. 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 examiner is reminded that he or she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. Additionally, the examiner must comment on the functional impairment caused by the Veteran’s back disability. The examiner should describe what, if any, impact the Veteran’s back disability has on her ability to work or perform occupational tasks. In order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test the range of motion on active motion and passive motion, as well as in weight-bearing and nonweight-bearing. 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. The Veteran has reported that she suffers from flare-ups of her back symptoms. The examiner must comment on additional functional loss during the flare-ups or provide an adequate explanation has to why such comment is not included. If the examiner determines the Veteran is not currently suffering from a flare-up of any conditions, the examiner must also ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding flare-ups by alternative means. The examiner must offer an estimate as to additional functional loss during flare-ups regardless of whether the Veteran is undergoing a flare-up at the time. If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Ensure that the Veteran is scheduled for an appropriate VA examination to determine the nature, status, and etiology of her claimed constipation disability. The examination should be conducted by a VA examiner who has not previously examined the Veteran. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should consider the entire medical history of the claimed disability and any other pertinent evidence of record, as appropriate. All findings by the examiner should be reported in detail, and all opinions must be accompanied by a clear and complete rationale. The examiner must to provide a medical opinion as to whether the Veteran’s claimed constipation disability was incurred in, caused by, or otherwise related to her active service. The examiner must also provide a medical opinion as to whether the Veteran’s claimed constipation disability was proximately due to (caused by), aggravated by, or otherwise the result of the Veteran’s service-connected back disability. The examiner must provide the following: (a) Identify all diagnosable intestinal or bowel conditions in the Veteran, including but not limited to constipation. (b) Provide a medical opinion as to whether it is as least as likely as not (a 50 percent probability or greater) that any constipation suffered by the Veteran was incurred in, aggravated by, caused by, or otherwise related to her active service. (c) Provide a medical opinion as to whether it is as least as likely as not (a 50 percent probability or greater) that any constipation in the Veteran was caused by or the result of her service-connected back disability. (d) Provide a medical opinion as to whether it is as least as likely as not (a 50 percent probability or greater) that any constipation in the Veteran was worsened beyond its natural progression (aggravated) by her service-connected back disability. (e) Provide a medical opinion as to whether it is as least as likely as not (a 50 percent probability or greater) that any constipation in the Veteran was caused by or the result of medication she has taken for her service-connected back disability. (f) Provide a medical opinion as to whether it is as least as likely as not (a 50 percent probability or greater) that any constipation in the Veteran was worsened beyond its natural progression (aggravated) by medication she has taken for her service-connected back disability. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.