Citation Nr: 21000050 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-03 172 DATE: January 4, 2021 REMANDED The claim of entitlement to service connection for joint pain, to include as a manifestation of undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117, is remanded. The claim of entitlement to an increased rating greater than 10 percent prior to December 3, 2019, and a rating greater than 20 percent from that date, for lumbosacral strain (lumbar spine disability), is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1983 to December 1992, to include service in Southwest Asia. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2012 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied service connection for joint pain and a rating greater than 10 percent for the Veteran’s lumbar spine disability. In October 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in January 2015. A supplemental statement of the case (SSOC) was issued in January 2017. In March 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. In July 2018, the Board denied the Veteran’s increased rating claim for lumbar spine disability, and remanded the Veteran’s service connection claim for joint pain to the agency of original jurisdiction (AOJ) for further development. Subsequently, the Veteran appealed the Board’s decision to the United States Court of Veterans Appeals (Court). In a May 2019 Order, the Court granted a Joint Motion for Partial Remand filed by representatives for the VA Secretary and the Veteran, vacating the Board’s decision and remanding the claim to the Board for further proceedings consistent with the Joint Motion. In September 2019, the Board, in turn, remand the claim for higher rating for lumbar spine disability to the AOJ for further development, to include a VA examination. After accomplishing further action on remand of the service connection claim, the AOJ continued to deny the service connection claim (as reflected in a May 2020 SSOC), and returned this matter to the Board.. Also, after accomplishing further action on remand of the claim for higher rating for lumbar spine disability, in an August 2020 rating decision, the AOJ assigned a higher, 20 percent rating for the Veteran’s lumbar spine disability, effective December 3, 2019, and subsequently returned this matter to the Board. [Notably, as the Veteran has not been granted the maximum rating available for this disability (which he is presumed to seek) either before or after December 3, 2019, a claim for higher ratings disability, now (which he is presumed to seek), the claim for higher rating—now, characterized to reflect the staged ratings assigned—remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).] Unfortunately, the Board finds that still further AOJ action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2018 remand, the Board noted the Veteran’s assertions as to his joint pain in service, and in the years since discharge from service. During his Board hearing, the Veteran testified that his joint pain is a result of his service in the Gulf War, to include a gamma globulin shot and taking pyridostigmine tablets. He also reported his joint pain began during service and that he had chronic problems since 1994. He reported pain in his knees, elbows, fingers, and ankles. It was also noted that the Veteran had documented service in Southwest Asia, and an August 2012 VA examination report noted arthritis and chronic fatigue syndrome. Hence, the Board remanded the service connection claim to obtain a medical etiology opinion. The Board explicitly directed that in rendering the requested opinion, the physician should consider all medical evidence and lay assertions, to include the Veteran’s assertions of bilateral ankle joint and left knee pain, noting that the Veteran is competent to report his symptoms and history. Pursuant to the July 2018 Board remand, an addendum opinion was received from a VA physician in May 2020. The physician opined that the Veteran’s “musculoskeletal disorders and/or complaints of ‘joint pain in the knees, elbows, hands/fingers, and ankles’” were not related to his active service. As rationale, the physician stated the Veteran’s service treatment records (STRs) are silent for any musculoskeletal complaints during service, and “the post service medical questionnaire and physical in 1995 (completed and signed by the Veteran) also does not report any such issues.” However, the VA physician appears to have largely based her opinion on a lack of contemporaneous medical evidence of joint pain disability, without fully considering the Veteran’s lay statements as to in-service pain in his knees, elbows, fingers, and ankles, which have continued since service. Rather, the examiner seems to have relied solely or primarily upon the absence of documented evidence of joint pain during and following service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that the VA examiner’s opinion, which relied solely on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”); Cf. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (“the medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant’s current disability and his military service.”). Thus, it appears that the opinion may not have been based on full consideration of all medical and lay evidence. Under these circumstances, the Board is unable to find that substantial compliance with the July 2018 remand directives has been achieved. See D’Aries v. Peake, 22 Vet. App. 97, 105-06 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board finds that another remand of the service connection claim to obtain further medical opinion—based on full consideration of the Veteran’s documented medical history and all lay assertions, and supported by complete, clearly-stated rationale—is required. See Stegall, supra. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes action to provide an examination or obtain a medical opinion, it must ensure that one is provided or obtained that is adequate for purposes of the determination being made). Regarding the Veteran’s increased rating claim for lumbar spine disability, in its September 2019 remand, the Board noted that the examination reports of record did not comply with requirements enunciated in Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Specifically, the December 2016 VA examiner noted pain on initial testing in several places but did not report where in the range of motion pain began, as required by Mitchell. Moreover, although the examiner declined to opine on the Veteran’s functional impact regarding flare-ups and after repeated use, the examiner should have considered the Veteran’s documented medical history and assertions in providing an estimate of the extent of functional loss during flare-ups and after repeated use, as required by Sharp. Pursuant to the September 2019 Board remand, the Veteran underwent VA contract examination in December 2019 . The examiner noted the Veteran’s lumbar spine disability, degenerative arthritis of the spine, and intervertebral disc syndrome. Upon examination, the examiner noted lower back muscle spasms and guarding resulting in an abnormal gait or abnormal spinal contour, described as guarding on ambulation. Although the examination clearly did not yield clinical findings sufficiently responsive to the concerns noted in the prior remand, based on the examiner’s findings, as noted, in an August 2020 rating decision the AOJassigned a higher, 20 percent rating for the Veteran’s lumbar spine disability, effective December 3, 2019. However, as such rating is not the maximum assignable rating for the disability, and an examination to obtain the previously requested clinical findings and testing results could potentially yield information warranting an even higher rating, a remand of this matter for another examination is also required. See Stegall, supra. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent evidence. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Jackson, Mississippi, and that records from that facility dated through October 2018 are associated with the claims file; however, more recent records may exist. Therefore, the AOJ should obtain from the above-noted facility all outstanding records of evaluation and/or treatment of the Veteran dated since October 2018, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to any claim(s) on appeal (particularly, regarding any private (non-VA) treatment), explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action(s) deemed appropriate prior to adjudicating the claims on appeal. The matters are hereby REMANDED for the following action: 1. Obtain from the Jackson VAMC all outstanding records of evaluation and/or treatment of the Veteran, dated since October 2018. Follow the procedures of 38 C.F.R. § 3.159 regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any claim(s) on appeal that is not currently of record, to include any private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran. 4. After all records and/or responses have been associated with the claims file, arrange to obtain from the May 2020 VA examiner an addendum opinion addressing the etiology of the disability manifested by joint pain. If that individual is no employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain an opinion, based on review of the claims file from an appropriate physician (if possible). Only arrange for the Veteran to undergo further examination, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should include discussion of the Veteran’s documented medical history and assertions. If the Veteran is examined, all indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. With respect to each identified disability related to the Veteran’s joint pain claimed to affect his bilateral hands, fingers, knees, and ankles, to include diagnosed arthritis and chronic fatigue syndrome—currently present or present at any point since the claim (even if now asymptomatic or resolved), the physician should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had had its onset during service, or is otherwise medically-related to the Veteran’s service. In addressing the above, the physician must consider and discuss all pertinent in and post-service medical and other objective evidence—to include medical records documenting the Veteran’s complaints of bilateral ankle joint and left knee pain; as well as all lay assertions—to include the Veteran’s competent assertions as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of any specific diagnosis and/or symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state and explain why. Complete, clearly stated rationale for the conclusions reached must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA lumbar spine examination by an appropriate medical professional. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented history and lay assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the thoracolumbar spine (expressed in degrees) on both active motion and passive motion and in both weight bearing and non-weight bearing (as appropriate). 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 so state and explain why. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of associated pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which motion limiting pain begins. In addition, if the examination is not conducted during a flare up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also specifically indicate whether the Veteran has ankylosis and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. Additionally, the examiner should identify and comment on the existence, frequency, or extent, as appropriate, of all neurological manifestations of the lumbar spine disability. The examiner should provide an assessment of each such manifestation as mild, moderate, moderately severe, or severe. All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 7. After completing the above-requested actions, and any additional action(s) deemed warranted, adjudicate the claims on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, Associate 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.