Citation Nr: 20049906 Decision Date: 07/27/20 Archive Date: 07/27/20 DOCKET NO. 16-19 637A DATE: July 27, 2020 REMANDED Entitlement to a rating in excess of 20 percent prior to January 5, 2017, in excess of 40 percent from January 5, 2017 to January 29, 2020, and in excess of 10 percent from January 30, 2020, for the service-connected lumbar spine degenerative arthritis is remanded. Entitlement to a rating in excess of 30 percent prior to January 30, 2020, and in excess of 20 percent on and thereafter for the service-connected neck strain is remanded. Entitlement to service connection for sinusitis is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2003 to November 2005. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from June 2014 and October 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2018, at which time the Board reopened the Veteran’s claim for service connection for sinusitis and denied service connection for sinusitis. The Board also denied the Veteran’s increased rating claims for his service-connected lumbar spine and neck strain disabilities. [Additional issues were remanded in the November 2018 Board decision. Following completion of the evidentiary development directed therein, those additional claims will be the subject of a separate Board decision.] The Veteran appealed the denial of her claims for service connection for sinusitis and for increased ratings for her service-connected lumbar spine and neck strain disabilities. In November 2019, the United States Court of Appeals for Veterans Claims (CAVC/Court) granted an October 2019 Joint Motion for Partial Remand (JMR) requesting vacatur and remand of this portion of the Board’s November 2018 decision. The appeal has now returned to the Board for action consistent with the CAVC Order. The Board notes, while the Veteran’s increased ratings claims were pending before the Court, an additional rating decision was issued in March 2020. This decision reduced the Veteran’s lumbar spine degenerative arthritis to 10 percent, effective January 30, 2020, and reduced the Veteran’s neck strain to 20 percent, effective January 30, 2020. Significantly, these rating decreases did not result in an overall reduction in compensation payable. A prior grant of a total disability rating based on individual unemployability remains in effect. Thus, the regulatory reduction notification procedures are not needed. 38 C.F.R. § 3.105(e). If the Veteran’s total compensation amount is not affected, such that there is no net decrease in the combined award, then there would be no practical reason to require that § 3.105(e) be complied with. O’Connell v. Nicholson, 21 Vet. App. 89, 92 n.3 (2007) (emphasizing that the plain meaning of § 3.105(e) is that notice is warranted only when there is a reduction in compensation payments currently being made). These issues have been revised to reflect these most recent staged ratings. Entitlement to a rating in excess of 20 percent prior to January 5, 2017, in excess of 40 percent from January 5, 2017 to January 29, 2020, and in excess of 10 percent from January 30, 2020, for the service-connected lumbar spine degenerative arthritis The October 2019 JMR found that the Board erred by providing an inadequate statement of reasons and bases because the Board failed to address an inconsistency in the March 2015 VA examination. The parties to the Joint Motion agreed that the March 2015 examination report indicated that the Veteran reported “flare-ups that impact the function of the thoracolumbar spine” while another section indicated that the Veteran does not “report flare-ups.” Accordingly, the JMR concluded that the Board failed to address this inconsistency. The Court directed the Board to address this inconsistency and to determine whether a new examination is needed to address the presence of flare-ups and any resulting functional loss. In accordance with the JMR and Court Order, the Board finds that a remand is necessary to accord the Veteran a new VA examination to address the current severity of her service-connected lumbar spine degenerative arthritis. The Board finds that, given the inconsistencies of the March 2015 VA examination regarding flare-ups, an additional examination is warranted. The Board notes that the Veteran was examined in January 2017 and January 2020 but that these examinations contain their own inadequacies. The January 2017 examiner noted that the Veteran’s claims file was reviewed and found that the Veteran had no other neurologic abnormalities. However, the Veteran’s VA treatment records prior to this examination, in November 2016, include the Veteran’s reports of incontinence that she believed to be associated with her back pain. As such, some of the findings of the January 2017 VA examination are inconsistent with the Veteran’s record. The Veteran was most recently examined in January 2020, but this examination is inadequate for rating purposes. The examiner did not review the Veteran’s claims file and therefore did not address her continuing reports of episodes of incontinence, as well as increased pain, functional loss, and flare-ups, as noted most recently in December 2019 VA treatment records. The January 2020 examiner indicated that the Veteran did not report flare-ups, although the Veteran reported flare-up symptomatology. The examiner noted the Veteran’s report of incontinence at the outset of the examination, but then noted that the Veteran did not have any other neurologic abnormalities to include any bowel or bladder incontinence. The examiner additionally noted diagnoses of right lower extremity radiculopathy and left lower extremity sciatica, but in the radiculopathy section of the examination report noted that the Veteran did not have symptoms or signs of radiculopathy. In multiple ways, the January 2020 examination report is inconsistent, and the Board further finds that the examination report appears to be in conflict with the Veteran’s reports of her limitations, pain, and additional symptoms as documented in her VA treatment records. A remand is thus necessary to accord the Veteran a new, adequate examination assessing the severity of her service-connected lumbar spine degenerative arthritis, to include an assessment of flare-ups, functional loss, and any neurological abnormalities related to this disability, in accordance with the JMR. Entitlement to a rating in excess of 30 percent prior to January 30, 2020, and in excess of 20 percent on and thereafter for the service-connected neck strain The October 2019 JMR found that the Board erred by providing an inadequate statement of reasons and bases for its decision. Specifically, the JMR found that the Board failed to address material evidence regarding the Veteran’s neck strain disability. The January 2017 VA examination noted findings from cervical spine X rays taken in June 2013, which showed a “straightening and slight reversal of the cervical lordosis.” The parties to the Joint Motion agreed that the November 2018 Board decision failed to address this finding. Accordingly, the JMR concluded that the Board should address the straightening and slight reversal of the cervical lordosis in relation to the Veteran’s claim. In reviewing the January 2017 VA examination and the more recent January 2020 VA examination, the Board finds that a remand is necessary to accord the Veteran an additional VA examination. The January 2017 examination noted there was straightening and slight reversal of the cervical lordosis noted on the June 2013 X rays, but did not note more current X-rays or other clinical findings. In subsequent VA treatment visits, in May 2017, MRI findings determined that the Veteran exhibited straightening of the normal cervical lordosis with minimal posterior disc bulges within the cervical spine, without evidence of central canal stenosis within the cervical spine. The January 2017 examination report also indicated that the Veteran did not report functional loss or functional impairment, but that the Veteran reported pain if she tries to turn her head too far and that she therefore avoids turning her head. In this regard, the examination report appears to be inconsistent. The Veteran reported worsening neck pain in November 2017 and December 2019. The Veteran was most recently examined in January 2020. The examiner did not review the Veteran’s claims file and, as such, did not address the Veteran’s reports to VA treatment providers that she has experienced incontinence with increased neck pain and that she has experienced neck pain that radiates down to her shoulders and arms. The examination found no radicular pain, or signs or symptoms related to such, and found no other neurologic abnormalities. Given the other evidence of record and lack of review of the Veteran’s claims file, the Board finds that a remand is necessary to accord the Veteran a new examination that more accurately reflects the current severity of the Veteran’s neck strain. Entitlement to service connection for sinusitis The October 2019 JMR found that the Board erred by relying an inadequate nexus opinion to deny the Veteran’s claim for service connection. The JMR found that the opinion provided by the August 2016 examiner was not fully informed, as the examiner found a lack of continuity from the Veteran’s documented in-service complaints of sinusitis as there was no documentation of symptoms or management of the condition for over a 10-year timeframe. However, the Veteran’s medical treatment records show treatment or notations for sinusitis in July, August, and December 2009. The Court directed the Board to obtain a new VA medical nexus opinion addressing sinusitis that is fully informed. Thus, a new VA medical nexus opinion should be obtained on remand that fully considers the Veteran’s statements and documented reports of, and treatment for, sinusitis in the years after her separation from service in accordance with the JMR and Court Order. These matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the severity of her service-connected lumbar spine degenerative arthritis and service-connected neck strain. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings found on examination to be associated with these disabilities must be reported in detail. The examiner should test the range of motion and pain in the Veteran’s lumbar and cervical spine in active and passive motion and 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, he or she should clearly explain why that is so. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare ups of the pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare up, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information—i.e. frequency, duration, characteristics, severity, or functional loss—regarding the Veteran’s flare ups by alternative means. The examiner must also assess all neurological abnormalities due to the service-connected lumbar spine degenerative arthritis and/or service-connected neck strain, to include the Veteran’s documented reports of incontinence reflected in her VA treatment records. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 2. Also, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any sinusitis disability she may have. The claims file must be made available to the examiner for review in conjunction with this examination, and the examiner should acknowledge such review in the examination report. 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. After reviewing the claims folder and interviewing and examining the Veteran, the examiner is asked to: a. Identify/diagnose any sinusitis disability that presently exists or that has existed during the appeal period. b. Opine as to whether it is at least as likely as not (i.e., at least a 50 percent probability or greater) that any such diagnosed sinusitis disability onset in, or is otherwise related to, her service—to include whether any such diagnosed disability is consistent with her contentions regarding this condition and her service. The examiner is advised that the Veteran is competent to report her symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Her failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.