Citation Nr: 20028832 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-18 819 DATE: April 24, 2020 REMANDED Entitlement to an evaluation in excess of 20 percent for left shoulder arthritis is remanded. Entitlement to an evaluation in excess of 10 percent for a chronic right ankle strain, status post fracture, is remanded. Entitlement to an evaluation in excess of 10 percent for a chronic right knee strain is remanded. Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss is remanded. Whether new and material evidence has been received to reopen the claim of service connection for tinnitus is remanded. Whether new and material evidence has been received to reopen the claim of service connection for a low back disability, to include as secondary to right ankle and right knee chronic strains, is remanded. Whether new and material evidence has been received to reopen the claim of service connection for degenerative joint disease of the left knee, to include as secondary to a chronic right knee strain, is remanded. Whether new and material evidence has been received to reopen the claim of service connections for residuals of a jaw fracture is remanded. Whether new and material evidence has been received to reopen the claim of service connection for sleep apnea is remanded. Whether new and material evidence has been received to reopen the claim for service connection for migraine headaches is remanded. Whether new and material evidence has been received to reopen the claim of service connection for eczema is remanded. Whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disability, to include depression, is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a bilateral ear disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to specially adapted housing is remanded. Entitlement to a special home adaption grant is remanded. REASONS FOR REMAND The Veteran had active service from October 1975 to October 1978. He had additional service from October 1978 to August 1981 that is not honorable for VA purposes. 1. Entitlement to an evaluation in excess of 20 percent for left shoulder arthritis is remanded. 2. Entitlement to an evaluation in excess of 10 percent for a chronic right ankle strain, status post fracture, is remanded. 3. Entitlement to an evaluation in excess of 10 percent for a chronic right knee strain is remanded. Under the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), a VA examination of the joints must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59. The Veteran had a VA examination for the right ankle and right knee in October 2016. The ranges of motion related to the right ankle and right knee were not measured in both active and passive motion, although the examination report did mention that there was pain on active and passive motion for both joints. Therefore, the Board finds that the Veteran must be scheduled for a new examination before the claim can be decided on the merits because the examination did not comply with the requirements of Correia, 28 Vet. App. at 168. The examiner should also provide a retrospective opinion based on the prior examinations regarding the range of motions at the time of the October 2016 examination in active and passive motion. The Veteran had a VA examination for the left shoulder in September 2017 at which he reported flare-ups from lifting or laying on the shoulder too long. The examiner felt that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups, and was medically inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. However, the examiner wrote that she was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups or with repeated use over time because the Veteran was not examined during a flare-up or after repeated use over time. The examiner did not use the information provided by the Veteran or obtain additional information from the Veteran or the treatment records such as the frequency, duration, characteristics, severity, or functional loss with repetitive use or during flare-ups. “[B]efore the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). In addition, range of motion should be measured in active and passive motion. See Correia, 28 Vet. App. at 168 4. Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss is remanded. 5. Whether new and material evidence has been received to reopen the claim of service connection for tinnitus is remanded. 6. Whether new and material evidence has been received to reopen the claim of service connection for a low back disability, to include as secondary to right ankle and right knee chronic strains, is remanded. 7. Whether new and material evidence has been received to reopen the claim of service connection for degenerative joint disease of the left knee, to include as secondary to a chronic right knee strain, is remanded. 8. Whether new and material evidence has been received to reopen the claim of service connections for residuals of a jaw fracture is remanded. 9. Whether new and material evidence has been received to reopen the claim of service connection for sleep apnea is remanded. 10. Whether new and material evidence has been received to reopen the claim for service connection for migraine headaches is remanded. 11. Whether new and material evidence has been received to reopen the claim of service connection for eczema is remanded. 12. Whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disability, to include depression, is remanded. 13. Entitlement to service connection for a right shoulder disability is remanded. 14. Entitlement to service connection for hypertension is remanded. 15. Entitlement to service connection for a left hip disability is remanded. 16. Entitlement to service connection for a right hip disability is remanded. 17. Entitlement to service connection for a bilateral ear disability is remanded. 18. Entitlement to service connection for a left ankle disability is remanded. 19. Entitlement to specially adapted housing is remanded. 20. Entitlement to a special home adaption grant is remanded. Regarding the issue of service connection for a left ankle disability, service connection was denied in a March 2008 rating decision. Prior to the expiration of the appeals period, relevant treatment records were associated with the claims file. Therefore, the March 2008 rating decision is still on appeal as it pertains to service connection for a left ankle disability. See 38 C.F.R. § 3.156(b). The Veteran had a VA examination for his low back in December 2014 at which he was diagnosed with degenerative arthritis of the spine. The examiner opined that the back condition was less likely than not secondary to the right ankle and right knee strains because the Veteran’s gait was not altered in a way that would cause abnormal biomechanical force on the lumbar spine. The Veteran used a walker due to a patella skin graft and for balance problems related to a 2000 accident in which he lost his left great toe. It was also noted that a November 2008 treatment note states that the back pain began in 1988, when the Veteran was assaulted, and that it got worse in 1999 when he hit his back on a sump pump. The examiner did not provide an opinion regarding whether the low back disability was aggravated by the right ankle and right knee disabilities. Therefore, the Veteran should be scheduled for a new examination before the claim can be decided on the merits. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). A statement of the case (SOC) was issued in May 2018. Subsequent to the SOC and prior to when the case was transferred to the Board in August 2018, additional VA treatment records were associated with the claims file without issuance of a supplemental statement of the case (SSOC). These treatment records could be relevant to the issues before the Board. Therefore, under applicable VA regulations, the claim must be remanded for issuance of an SSOC. See 38 C.F.R. § 19.37(a). VA treatment records to January 2018 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from January 2018 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain VA treatment records from January 2018 to the present. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected degenerative right ankle, right knee, and left shoulder disabilities. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The examiner should also indicate the ranges of right ankle, right knee, and left shoulder motion both actively and passively and with weight-bearing and nonweight-bearing. Provide the findings for limitation of motion (expressed in degrees) for the Veteran’s right ankle, right knee, and left shoulder currently and retrospectively. In doing so, please review the prior VA examination reports from October 2016 and September 2017, and based on the information therein, provide the requested ranges presently and at the time of those examinations. 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. If it is not feasible to do so to any degree of medical certainty without resorting to speculation, then the examiner must provide an explanation for why this is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups, regardless of whether the Veteran can be tested with repetitive use or is examined during a flare-up. The VA 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. If it is not feasible to do so to any degree of medical certainty without resorting to speculation, the examiner must provide an explanation for why this is so. 3. Schedule the Veteran for a VA examination to determine the etiology of his low back disability. The examiner must be given full access to the Veteran’s complete VA claims file and the Veteran’s electronic records for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disability is related to an in-service injury, event, or disease from the October 1975 to October 1978 period of service, or was incurred within a year of service. The examiner must also provide an opinion regarding whether the low back disability was at least as likely as not (50 percent or greater probability) (1) proximately due to the chronic right ankle strain and/or the chronic right knee strain, or (2) aggravated beyond natural progression by the chronic right ankle strain and/or the chronic right knee strain. The term ‘at least as likely as not’ does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor as it is to find against it. The reviewer must include in the medical report the rationale for any conclusions expressed, to include descriptions of the medical processes involved and citation to relevant medical literature/treatise as necessary. A report containing unsupported, unexplained, or speculative conclusions will be returned as inadequate. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.