Citation Nr: 21000045 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-22 880A DATE: January 4, 2021 REMANDED An initial rating in excess of 10 percent for a lumbar spine disability, characterized as back strain secondary to retrolisthesis L5 on S1 with associated degenerative disc disease, prior to February 21, 2017, and in excess of 20 percent thereafter is remanded. An initial rating in excess of 10 percent for bilateral pes cavus prior to February 21, 2017, and in excess of 30 percent thereafter is remanded. An initial rating in excess of 10 percent for a right knee disability is remanded. Entitlement to service connection for a left leg disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to September 1982, and from April 1984 to April 2004. This matter returns to the Board of Veterans’ Appeals (Board) following the issuance of a September 2018 remand order from the Board which directed the Regional Office (RO) to complete additional development. REASONS FOR REMAND 1. An initial rating in excess of 10 percent for a lumbar spine disability, characterized as back strain secondary to retrolisthesis L5 on S1 with associated degenerative disc disease, prior to February 21, 2017, and in excess of 20 percent thereafter is remanded. 2. An initial rating in excess of 10 percent for bilateral pes cavus prior to February 21, 2017, and in excess of 30 percent thereafter is remanded. 3. An initial rating in excess of 10 percent for a right knee disability is remanded. 4. Entitlement to service connection for a left leg disorder is remanded. 5. Entitlement to service connection for a cervical spine disorder is remanded. The Veteran has also submitted claims for service connection for a left leg disorder and cervical spine disability, as well as for increased ratings for bilateral pes cavus, a lumbar disability, and for a right knee disability. Lumbar Spine Disability The Veteran’s has submitted a claim for a rating in excess of 10 percent for a lumbar disability, characterized as back strain secondary to retrolisthesis L5 on S1 with associated degenerative disc disease, prior to February 21, 2017, and in excess of 20 percent thereafter. The Veteran, in statements (including from May 2018), has described his flare-ups as resulting in incapacitation for up to weeks at a time. He has indicated that flare-ups have occurred since his condition began, and that both his disorder and flare-ups have increased in severity since his last examination. He was provided with a VA examination for his lumbar disability in May 2017. At that examination, the Veteran reported flare-ups with increases in pain intensity when sitting, standing, walking, or bending. The examiner noted that the examination was not being conducted in a matter consistent with a flare-up, and noted that they could not opine as to the Veteran’s functional loss without resorting to mere speculation. The May 2017 VA examiner did not “estimate the Veteran’s functional loss due to flare-ups based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so.” See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, the examination is inadequate and a new examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Bilateral Pes Cavus and Right Knee Disability With regard to the Veteran’s pes cavus and right knee disabilities, the Veteran, in his May 2018 Form 9, indicated that both his bilateral pes cavus and right knee disability have worsened since his last examination in May 2017. In this regard, VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated or when the available evidence is too old to adequately evaluate the current state of the condition. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). Therefore, reexamination is needed to reassess the severity of these service-connected disabilities. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Left leg The Veteran has attested that his current left leg injury is related to active duty service. Specifically, that he injured his left leg during jump training, in which his parachute became stuck in a tree and he subsequently fell from about 100 feet up. The Veteran’s in-service records do not include documentation for treatment of this injury. However, the Veteran has submitted pictures of himself while in service where he has a cast on his left leg and is using crutches. Additionally, the Veteran documented this injury on a December 1996 report of medical history. As such, the Board considers the Veteran’s purported left leg injury during his first tour of duty to have taken place and is established. While the Board has found that the Veteran’s in-service jump injury to be established, there is not enough information to prove or disprove the existence of a nexus between this injury and his current left leg disorder. Accordingly, this claim must be remanded for a new VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Cervical Spine Disorder The Veteran’s claim for service connection for a cervical spine disorder was previously remanded by the Board in part so that the RO could seek and obtain treatment records from the period between January 2006 and March 2009. While some VA treatment records from 2008 and 2009 were added to the claims file that time, a February 2020 letter from the RO also indicated that the Veteran’s records from the identified period could not be obtained. This would appeal to conflict with the presence of the above-mentioned records. Unfortunately, the Board is left unsure whether all records were obtained or not. Therefore, clarification is required. Regardless, the Board also notes from the VA treatment records that were made available that the Veteran underwent radiographic imaging in 2005 and 2007, which may provide information pertaining to the Veteran’s cervical spine condition soon after he left service. However, the imaging reports are not of record. Therefore, these should also be obtained. The matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested.) 1. Obtain any and all treatment records from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. The RO should ensure that all treatment records have been obtained from the San Juan VA Medical Center in the period between January 2006 and March 2009. If these records are unable to be obtained, a formal finding of unavailability should be prepared and associated with the claims file. 3. The RO should also make efforts to the reports from all radiographic imaging that is of record, and in particular any imaging that the Veteran underwent from 2005 to 2007. 4. Schedule the Veteran for new VA examinations to determine the current severity of his lumbar spine disability, bilateral pes cavus. The full range of motion testing must be performed in both active and passive motion, in weightbearing and non-weightbearing with range of motion measurements of the opposite undamaged joint. If the examiner(s) is unable to conduct the required testing or concludes that the required testing is not necessary in this case, they should clearly explain why that is so. The examiner(s) should address in detail the additional functional impairment and range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups for each disability. The examiner(s) should estimate any additional loss of motion to the best of their ability. If it is not possible to provide a specific measurement without speculation, the examiner(s) should 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). 5. Schedule the Veteran for a new examination, with an appropriate clinician, to determine the nature, extent, onset, and etiology of his left leg disorder. The examiner should determine and verify any and all diagnoses for the Veteran’s left leg. The examiner is instructed that the Board has found the Veteran’s report of his jump training injury in service to be corroborated and should be treated as fact in rendering the opinion. The complete claims file should be made available to the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that his left leg disorder is etiologically related to the Veteran’s period of service. All opinions should be accompanied by adequate reasons and bases. If the examiner cannot provide the requested opinion without resorting to mere speculation, they should provide a complete explanation stating why this is so. 6. The RO should undertake any other development deemed necessary in order to readjudicate the Veteran’s increased rating claims for his lumbar disability, bilateral pes cavus, and right knee disability, and service connection claim for a left leg disorder. If the remaining benefits on appeal are denied, the RO should return those claims to the Board for further appellate review. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel