Citation Nr: 21001525 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 11-10 110 DATE: January 8, 2021 REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for obesity, to include as secondary to a service-connected disability, is remanded. Entitlement to a rating in excess of 40 percent for a lumbar spine disability is remanded. Entitlement to a rating in excess of 20 percent for a cervical spine disability is remanded. Entitlement to an initial rating in excess of 20 percent for right upper extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for left upper extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for right knee limitation of flexion is remanded. Entitlement to a rating in excess of 10 percent for left knee limitation of flexion is remanded. Entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. Entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. Entitlement to an initial rating in excess of 0 percent for right knee limitation of extension is remanded. Entitlement to an initial rating in excess of 0 percent for left knee limitation of extension is remanded. REASONS FOR REMAND The Veteran initially filed claims for higher ratings for lumbar spine, cervical spine, and knee disabilities. The Board notes that the knee disabilities, at the time of filing of the Veteran's initial claims on appeal, were rated solely under the criteria for limitation of flexion of each knee. During the pendency of the appeal, VA has assigned separate ratings for right and left lower extremity radiculopathy disabilities, caused by a service-connected lumbar spine disability; and right and left upper extremity radiculopathy disabilities, caused by service-connected cervical spine disabilities. Additionally, VA has assigned separate ratings for limitation of extension and instability of each knee. The Board notes that claims for higher initial ratings for the newly rated disabilities are on appeal, as they are parts of the claims for higher ratings for lumbar spine, cervical spine, and knee disabilities. Therefore, th0se claims are included in this appeal. 1. Entitlement to service connection for a left shoulder disability is remanded. 2. Entitlement to service connection for weight gain, to include as secondary to a service-connected disability is remanded. In October 2019, the Board remanded a claim for service connection for weight gain to schedule an examination. The Board specifically requested that the VA examiner who performed the examination provide an opinion as to whether claimed weight gain was caused by a service-connected disability. In a February 2020 VA examination report, written in attempted compliance with the Board's remand requests, a VA examiner opined that the Veteran's current weight gain was not related to service-connected depression, because the Veteran's depression was not sufficiently severe to cause the post-service weight gain. In explaining the opinion, the examiner wrote that the records in VA’s computerized patient records system showed few instances of treatment or clinical visits for depression. The examiner stated that the absence of records denoting psychiatric treatment indicated that the Veteran experienced minimal psychological impairment. Instead of providing any opinion as to whether the service-connected orthopedic disabilities, to include spine and knee impairments, caused any weight gain condition, the examiner stated that the service medical records did not support the presence of an orthopedic disability during service or within a year of service and, therefore, the orthopedic disabilities were not related to service. In the February 2020 VA medical examination report, the VA examiner essentially indicated that the Veteran's depression could not have caused his weight gain, because the Veteran only experienced minimal depression symptoms. The examiner based that finding solely on a sparsity of records indicating treatment for depression. The Board notes that VA has found that the Veteran's depression symptoms cause reduced reliability and productivity associated with a currently assigned 50 percent rating. The Board further notes that the absence of records of treatment for a disability, by itself, is not an indication of the severity of the disability. The Board requested that the October 2019 examiner provide opinions as to whether service-connected orthopedic disabilities caused weight gain. In the October 2910 VA medical examination report, the examiner did not answer the Board requests and offered opinions as to whether the service-connected disabilities were themselves related to service. Because of the lack of compliance with the Board's remand instructions, a remand is necessary to provide an additional examination. Because the current severities of the service-connected orthopedic disabilities on appeal could affect the claim for service connection for weight gain, an additional orthopedic examination should be provided. As part of that examination, the examiner should indicate whether the Veteran currently has a left shoulder disability, to include pain resulting in limitation of function of the shoulder. If the Veteran has a left shoulder disability, the examiner should opine as to whether any left shoulder disability is related to service or any incident of service. 3. Entitlement to increased ratings for a lumbar spine disability, a cervical spine disability, bilateral upper and lower extremity radiculopathy, and right and left knee disabilities. VA treatment records currently in evidence contain notations indicating that VA employees scanned medical records into a VA hospital's imaging system, but do not contain any copies of the scanned records. Any treatment records scanned into a VA hospital's imaging system are within VA's constructive possession and are considered potentially relevant to the issues on appeal. Remand is required to allow VA to obtain those records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Specifically, obtain the most recent VA treatment records not included in the record of evidence and the records noted as having been scanned into the Vista imaging system by VA Medical Center personnel, as noted in the VA treatment records in evidence, dated March 20, 2019; January 9, 2019; October 8, 2018; August 2, 2018; July 12, 2018; March 21, 2018; January 14, 2018; January 3, 2018; October 12, 2017; October 2, 2017; August 25, 2017; June 7, 2017; May 26, 2017; April 5, 2017; April 3, 2017; March 20, 2017; January 30, 2017; December 17, 2016; December 9, 2016; December 18, 2013; October 15, 2012; December 7, 2011; June 2, 2010; April 26, 2010; April 20, 2010; and July 15, 2009. 2. Schedule the Veteran for a VA examination to be performed by an orthopedist to determine the severity of the service-connected lumbar and cervical spine disabilities; service-connected bilateral upper and lower extremity radiculopathy; and the right knee and left knee disabilities. The examiner should also provide opinions regarding the etiology of any left shoulder and weight gain disabilities. The examiner should note any functional impairment caused by the service-connected disabilities, including a full description of any effects of the disabilities upon the Veteran's ordinary activities. As part of the examination, the examiner should perform range of motion tests for the lumbar and cervical spine and knees for passive and active motion, and for both weight-bearing and nonweight-bearing. The examiner should opine whether there is any additional loss of function due to painful motion, excess motion, weakened motion, incoordination, fatigability, or on flare-up. For the service-connected radicular symptoms of the lumbar and cervical spines, the examiner should identify the involved nerves involved and the levels of impairment for each nerve involved. The examiner should also state whether there are any incapacitating episodes of intervertebral disc syndrome, when bed rest is prescribed by a physician and treatment required by a physician, and if so the frequency and duration. The examiner should state whether or not there is muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiner must review the claims file, to include the service medical records, to include the documentation of the a motor vehicle accident in service; the post-service treatment records, to include the December 2015 letter written by Y. Gold, Ph.D., in which that doctor indicated that the Veteran's weight gain was related to service-connected depression; and the lay evidence, to include the lay statements of record. The examiner should note that review in the report. The examiner should be advised that left shoulder pain resulting in functional impairment, by itself, can be considered a disability for VA purposes. After an examination, a review of the record, and an interview with the Veteran, the examiner should provide the following opinions: (a.) Diagnose all left shoulder disabilities found; (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left shoulder disability had its onset during active service or is related to any incident of service, including the documented in-service motor vehicle accident. (c.) Opine whether it is at least as likely as not (50 percent probability or greater) that any weight gain resulting in obesity is caused by a service-connected disability, to include depression, a lumbar spine disability, a cervical spine disability, a right shoulder disability, bilateral upper and lower extremity radiculopathy, right and left knee disabilities, chest wall pain, tinnitus; and erectile dysfunction. Reconcile that opinion with the December 2015 opinion of Dr. Gold. (d.) Opine whether it is at least as likely as not (50 percent probability or greater) that any weight gain resulting in obesity has been aggravated beyond its natural progression by a service-connected disability, to include depression, a lumbar spine disability, a cervical spine disability, a right shoulder disability, bilateral upper and lower extremity radiculopathy, right and left knee disabilities, chest wall pain, tinnitus; and erectile dysfunction. Reconcile that opinion with the December 2015 opinion of Dr. Gold. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.M. Gillett 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.