Citation Nr: 20021714 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 13-20 820 DATE: March 26, 2020 REMANDED The claim of entitlement to service connection for headaches, to include as due to a service-connected disability, is remanded. The claim of entitlement to service connection for a bilateral shoulder disorder, to include as secondary to a service-connected disorder, is remanded. The claim of entitlement to service connection for disability manifested by difficulty swallowing, to include as due to a service-connected disability, is remanded. The claim of entitlement to service connection for disability manifested by difficulty breathing, to include as due to a service-connected disability, is remanded. The claim of entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. The claim of entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left knee is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from September 1977 to November 1981 with subsequent service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2011, February 2012, and February 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). At the hearing, the Veteran also provided testimony regarding appeals of entitlement to increased disability ratings for his cervical spine disorder and left upper extremity radiculopathy. Those appeals are associated with a more recent docket number and have not been certified to the Board. The Board is unable to exercise jurisdiction over them at this time. The Veteran has also separately perfected appeals of entitlement to service connection for a heart disorder and right upper extremity atrophy. He requested a Board hearing for these appeals, and that matter is pending scheduling. Again, the Board will not exercise jurisdiction over these appeals at this time. 1. Service connection for headaches The Veteran has asserted that his service-connected neck disorder causes headaches, and development has been conducted that addresses this contention. However, the Board finds that an addendum opinion is warranted because the record raises a new theory of entitlement. In January 2018, a VA examiner explained that the Veteran had multiple medical conditions that could cause the Veteran’s subjective headaches. The examiner noted that the Veteran has chronic sinusitis, which is a likely cause of his subjective headaches. The Veteran’s diabetes was also a likely cause. The examiner also noted that the Veteran was diagnosed with conversion disorder in 2011, and according to a May 2011 VA consultation, his psychiatric symptoms would manifest through physical means with somatic symptoms like headaches or lightheadedness. In August 2019, the RO granted service connection for major depressive disorder, recurrent, severe with somatic symptom disorder with predominant pain. Given this history, the Board will remand the claim for an addendum opinion that addresses whether the Veteran’s claimed headaches are caused or aggravated by his now service-connected psychiatric disorder. 2. Service connection for a bilateral shoulder disorder The Board finds that remand is required for an adequate opinion that is responsive to the Veteran’s statements. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran asserts he has a bilateral shoulder disorder as a result of falls sustained due to his service-connected knees. At the May 2016 Board hearing, the Veteran described an incident when he fell down stairs and tore his right shoulder after his knees gave out. He described a similar incident in his left shoulder. The Veteran’s representative pointed to specific instances of VA treatment where the Veteran had suffered shoulder injuries due to falls. The September 2016 BVA remand asked a VA examiner to provide an opinion that addressed whether the Veteran’s shoulder disorders are caused or aggravated by trauma related to falls. Because the Veteran had suffered a right shoulder injury during service, the remand also directed that an opinion be obtained that determined whether the Veteran has a right shoulder disorder related to a right shoulder injury and diagnosis of strain noted in September 1986 during a period of active duty for training (ACDUTRA). On VA examination in June 2017, the examiner found that the examination was unsatisfactory due to the Veteran’s neck pain, which limited shoulder motion. Another VA examination in December 2017 showed a normal right shoulder examination with normal x-rays and glenohumeral degenerative joint disease with a small loose body in the joint in the left shoulder. The examiner provided negative direct and secondary opinions for the Veteran’s right shoulder claim because the examination was “near normal” with normal right shoulder x-rays. The examiner also provided negative secondary opinions for the left shoulder. While it was likely that the Veteran did strain his right shoulder in a fall due to his knee disorders, he explained that the injury was a muscle strain that had resolved. The degenerative joint disease was a long-standing condition that would have preceded the fall, and there was no evidence of an acute aggravation as a result of a fall. For the following reasons, these opinions are inadequate. Regarding the right shoulder, the Federal Circuit recently held that pain alone can serve as a disability for VA compensation purposes if the pain results in functional impairment that affects earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). At the May 2019 hearing, the Veteran testified that his right arm is weak as a result of his shoulder injuries sustained after falling due to his knees. Based on Saunders, such a symptom without underlying pathology, if resulting in functional impairment that affects earning capacity, can serve as a disability for VA compensation purposes. For that reason, the right shoulder opinions are inadequate. Further, all opinions rendered are premised off the Veteran’s statements that he suffered single shoulder injuries in falls resulting from his service-connected bilateral knee disorder. In the May 2019 Board hearing, however, the Veteran described numerous falls that resulted in shoulder injuries. He indicated that he “stopped counting after … 100” falls and that he would reinjure his shoulders when bracing himself. This history is more consistent with his May 2016 testimony, which cites to a history of multiple falls in support of secondary service connection. Therefore, the Board will remand for an opinion that reflects consideration of the Veteran’s statements that he has fallen numerous times, not just one fall per shoulder resulting in injury. 3. Service connection for disability manifested by difficulty swallowing and breathing The Board finds that remand is required for an adequate opinion. Barr v. Nicholson, 21 Vet. App. at 311. In June 2017, a VA examiner explained that it was possible the Veteran had neurological involvement secondary to his neck. In a subsequently scheduled January 2018 VA examination, the examiner attributed the Veteran’s difficulty swallowing to untreated GERD. He also attributed the Veteran’s breathing difficulties to chronic sinusitis. However, as noted by the Veteran’s representative in the May 2019 hearing, a neurological cause was not ruled out, and a VA examiner had noted in June 2017 that neurological impairment from the Veteran’s service-connected neck disorder should be considered. Finally, none of these opinions consider compelling private treatment records that suggest that the Veteran’s treating physician believes the Veteran’s neck disorder is causally related to his breathing and swallowing difficulties. May 2014 private treatment records document a summary of the Veteran’s service-connected neck disorder causing breathing issues. The Veteran had been hospitalized on multiple occasions due to lapses in breathing that caused him to lose consciousness. The Veteran was also noted to be experiencing increased difficulty with swallowing. This note was specifically discussed by the Veteran’s representative in the May 2016 and May 2019 hearing. On remand, a corrective opinion should be obtained. 4. Entitlement to disability ratings in excess of 10 percent for degenerative arthritis of the bilateral knees First, the Board finds that a new examination should be provided for the Veteran’s knees. VA provided an examination in December 2017. Then, the examiner noted the Veteran’s degenerative joint disease of the bilateral knees resulted in pain regardless of whether the Veteran was sitting or lying down. The pain was too much to bear when standing, so the Veteran would fall. He also suffered from swelling from time to time, and it was worse in bad weather. These findings suggest severe impairment, but the Veteran’s motion testing showed essentially normal flexion and extension with pain on terminal flexion. Stability tests were normal. In fact, the testing largely was normal throughout the examination aside from muscle strength. However, despite noting weakened muscle capabilities on flexion and extension, the examiner found that the bilateral knee weakness was not due to the Veteran’s service-connected bilateral degenerative joint disease, explaining that the cause was unknown. At the May 2019 hearing, the Veteran’s representative incorrectly summarized the December 2017 examination findings to attribute muscle weakness to the service-connected bilateral knee disorder. Regardless, the Board finds that the examination findings on this matter are inadequate because the examiner opined on the cause of the Veteran’s weakness on flexion and extension without some explanation. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, the Board will remand the claim for a corrective examination that adequately discusses the Veteran’s bilateral knee symptoms that are a result of his service-connected degenerative arthritis. Next, at the May 2019 hearing, the representative noted that, despite most of the findings of the December 2017 VA examination being normal, the Veteran was not able to stand and had severe pain while laying down or sitting. These symptoms, which arguably did not fit within any potentially relevant rating criteria for the knee, certainly had a marked interference with employment, averred the Veteran’s representative. The representative requested that the claims be remanded for referral to the Director of Compensation Services for extraschedular consideration. Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993); 38 C.F.R. § 3.321 (b)(1) (2016). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether a veteran’s disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, a veteran’s disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second inquiry, that is whether a veteran’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, a veteran’s disability picture requires the assignment of an extraschedular rating. As requested by the Veteran, the Board will refer the appeals to the Director of Compensation Service. The December 2017 VA examination showed severe symptomatology despite essentially normal findings. Such symptoms do not fall squarely within the rating criteria for the knees. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. As such, the first Thun step is met. The Veteran asserts his knee disorders result in marked impairment in functional ability, which is somewhat supported by the evidence of record. The Board finds that Thun step two is supported. Therefore, referral to the Director of Compensation Service is warranted. 5. TDIU The Board will also remand the TDIU claim pending the development requested on remand for the other appeals remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all VA treatment records for the Veteran dated from June 2018 to the present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the Veteran’s headaches from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disorder is caused or aggravated by the service-connected major depressive disorder with somatic symptom disorder with predominant pain. Aggravation is defined as a worsening beyond the natural progression of the disability. The examiner must specifically the January 2018 VA examination findings that suggest that the Veteran’s headaches might be psychiatrically caused. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the nature and etiology of his claimed bilateral shoulder disorder. The entire claims file must be made available to and be reviewed by the examiner. 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. (a.) The examiner is requested to determine what shoulder diagnoses are present. If no right shoulder diagnosis is present, the examiner should determine whether any right shoulder symptoms reach the level of functional impairment of earning capacity. (b.) The examiner is request to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a right shoulder disorder, if diagnosed, had onset in, or is otherwise related to, active military service, to include a right shoulder injury and diagnosis of strain noted in September 1986 during a period of ACDUTRA. (c.) The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current left and right shoulder disorders were caused or aggravated by trauma related to falls. In rendering this opinion, the examiner must address the Veteran’s description of many falls where he would brace himself with his arms, resulting in shoulder injuries. 4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the Veteran’s swallowing and breathing difficulties from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disabilities manifested by swallowing and breathing difficulty disorder is caused or aggravated by the service-connected IVDS with degenerative arthritis of the cervical spine. The examiner must specifically review the June 2017 VA examination note that suggests there may be a neurological component of the Veteran’s cervical spine disorder in relation to his breathing and swallowing difficulty and May 2014 private treatment records that discuss an extensive history of breathing difficulty and a worsening swallowing symptoms in relation to the Veteran’s neck disorder. Aggravation is defined as a worsening beyond the natural progression of the disability 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to address the severity of the service-connected bilateral knee disorder. The entire claims file must be made available to and be reviewed by the examiner. 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 relevant Disability Benefits Questionnaire must be utilized. The examiner must consider the effects of flare-ups even if the examination is not during a flare-up episode and is requested to provide any additional limitation of motion due to flare-up. The examiner must also consider the knee disabilities in terms of active and passive motion, weight-bearing and non-weight bearing. The examiner must address the December 2017 VA examiner’s findings that showed muscle weakness on flexion and extension of the knees but did not attribute this weakness to the Veteran’s degenerative joint disease of the bilateral knees, explaining that the cause of the weakness was unknown. Lastly, the examiner is asked to comment on functional effect that all the Veteran’s service-connected disabilities have on his ability to secure or follow a substantially gainful occupation. 6. Refer the Veteran’s claims of entitlement to disability ratings in excess of 10 percent for degenerative arthritis of the bilateral knees to VA’s Director of Compensation Service for extraschedular consideration. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steve Ginski, 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.