Citation Nr: 21002875 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-32 819 DATE: January 19, 2021 REMANDED Entitlement to service connection for a left lower extremity nerve condition, to include as secondary to service-connected lumbar strain is remanded. Entitlement to service connection for a right lower extremity nerve condition, to include as secondary to service-connected lumbar strain is remanded. Entitlement to service connection for a right hip condition, to include as secondary to service-connected lumbar strain is remanded. Entitlement to service connection for a left hip condition, to include as secondary to service-connected lumbar strain is remanded. Entitlement to service connection for joint pain, including fibromyalgia, as a result of Persian Gulf War service is remanded. Entitlement to an evaluation in excess of 20 percent for service-connected lumbar strain is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1992 to February 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision. The Veteran presented testimony before the Board in December 2018. The matters were remanded for further development in June 2019. The Judge who held the December 2018 hearing has since retired. The Board sent a letter to the Veteran in October 2020 offering a new hearing. There was no response and therefore the Board will adjudicate the appeal. The transcript of the December 2018 hearing is in the claims file and has been reviewed in conjunction with this appeal. Unfortunately, there has not been substantial compliance with the Board’s June 2019 remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Notably, the RO failed to obtain the Veteran’s VA treatment records for the period from 2000 to the present as requested. In addition, private medical records were not obtained. The Board notes that while a letter was sent to the Veteran in November 2019 asking him to complete VA Form 21-4142, Authorization to Disclose Information to VA, for any private providers and faciliities, including Drs. Christie, Ruland, Guyton and Conway, from which he sought treatment for the claimed conditions, it was sent to an address that mail was previoulsy returned to VA as unclaimed and unable to forward. A December 2019 electronic mail from the RO further shows that the Veteran had multiple documents of returned mail to the same address in his claims folder. Upon remand, the Veteran’s current address should be verified and an additional attempt should be made to obtain these private medical records. The Veteran was also to be afforded multiple VA examinations to assess the current severity of his lumbar strain and to determine the nature and etiology of any bilateral lower extremity nerve disorder, bilateral hip disability, and joint pain. In light of the missing records and for the following reasons, the Board finds the January 2020 VA examinations inadequate. The hip and thigh examination while noting subjective hip and pelvis symptoms, including pain, failed to address whether pain reached a level of functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The failure to address functional impairment in this context was an error in and must be corrected on remand. The peripheral nerves examination contained conflicting findings. Notably, the examiner concluded the Veteran did not have a bilateral lower extremity nerve disorder and thus, did not render an etiology opinion. However, objective findings within the examination report reveal the Veteran had symptoms attributable to a peripheral nerve condition, to include bilateral lower extremity pain, left lower extremity paresthesias and numbness, and decreased sensation L5 (foot/toes). The examination report also indicated that the Veteran had incomplete paralysis of the right and left sciatic nerve. Consequently, clarification and etiology opinion must be sought. The Gulf War general medical examination report is unclear as to whether the Veteran has a current diagnosis of fibromyalgia. The examiner indicated the Veteran had fibromyalgia within the body of the examination report, which impacted his ability to work, but concluded that there were no findings, signs, and or symptoms to support a diagnosis. In addition, the examiner indicated that “although the Veteran complains of subjective symptoms, there are no objective findings or diagnostic evidence to support a diagnosis therefore no evidence of a disability.” However, the examiner failed to opine whether these “subjective symptoms” were the result of a medically unexplained chronic multisymptom illness. Thus, an addendum opinion must be sought. The lumbar spine examination while noting pain on motion testing productive of functional loss, did not specify at which point pain began during range of motion testing. In conducting these measurements, the examiner should note not only whether pain on motion is present, but if present, where in the range of motion the pain sets in and whether that pain causes functional loss. Correia v. McDonald, 28 Vet. App. 158 (2016); (Emphasis added). Accordingly, the examination findings are not adequate for a contemporaneous rating since the Board cannot properly assess functional impairment which is done with consideration of pain. Knowing where pain sets in is particularly important in this case where functional impairment has been noted. Thus, further examination is necessary. Finally, because a decision on the issues pertaining to the lumbar spine disability, bilateral hips and lower extremeties, and joint pain could significantly impact a decision on the issue of TDIU, they are inextricably intertwined. Thus, once the opinions above are rendered, an addendum opinion must be also sought regarding TDIU. The matters are REMANDED for the following action: 1. After verifying the Veteran’s current address, ask him to complete a VA Form 21-4142 for any private physicians and facilities from which he received treatment for his back, hips, lower extremities, and joints, to include Drs. Christie, Ruland, Guyton and Conway. Make two requests for the authorized records from the identified providers/facilities, unless it is clear after the first request that a second request would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain the records, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 2. Obtain the Veteran’s VA treatment records for the period from 2000 to the present. 3. Thereafter, schedule the Veteran for a VA examination to address the current level of severity of the lumbar strain disability on appeal. The examiner should review the record, which should be noted in any subsequent report. (i) The examiner is asked specifically to provide range of motion testing (ROM) for the lumbar spine for active motion, passive motion, in both weight-bearing, and nonweight-bearing. In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use; and, identify at the point where pain starts. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM, to include noting the exact point at which pain starts. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ROM testing, if pain is noted, the exact point at which pain is first noted must be specified. (ii) Finally, the examiner is asked to address the Veteran’s contentions with regard to flare-ups, if any, in terms of ROM. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 4. Obtain an addendum opinion from the January 2020 Gulf War examiner, if available, otherwise the opinion must be provided by a similarly qualified provider. The examiner must clarify whether the Veteran currently has fibromyalgia. If not, the examiner must indicate whether the Veteran’s “subjective symptoms” are due a medically unexplained chronic multisystem illness that existed for six months or more and exhibits intermittent episodes of improvement and worsening. Please note the following: (a) medically unexplained chronic multisystem illness is a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities; (b) a chronic multisymptom illnesses of partially understood etiology and pathophysiology (e.g. diabetes and multiple sclerosis) will not be considered medically unexplained and (c) the six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. The examiner must discuss the underlying rationale for all opinions, preferably citing to specific evidence in the file supporting conclusions. 5. Obtain an addendum opinion from the January 2020 hip and thigh examiner, if available, otherwise the opinion must be provided by a similarly qualified provider. The examiner must opine whether bilateral hip pain results in functional impairment of earning capacity. If so, the examiner must opine whether the bilateral hip disability is at least as likely as not proximately due to, the result of, or aggravated by (beyond the natural progression) the service-connected lumbar strain disability. The examiner must discuss the underlying rationale for all opinions, preferably citing to specific evidence in the file supporting conclusions. 6. Obtain an addendum opinion from the January 2020 peripheral nerves examiner, if available, otherwise the opinion must be provided by a similarly qualified provider. The examiner must clarify whether the Veteran currently has a bilateral lower extremity nerve disorder. Specifically, the examiner must address the discrepancies between the conclusion that the Veteran did not have a bilateral lower extremity nerve condition and the objective findings within the examination report. Please note the examination report revealed the Veteran had symptoms attributable to a peripheral nerve condition, to include bilateral lower extremity pain, left lower extremity paresthesias and numbness, and decreased sensation L5 (foot/toes). The examination report also indicated that the Veteran had incomplete paralysis of the right and left sciatic nerve. In answering this question, the examiner must also address VA and private treatment records noting sciatica (e.g. April 2016 VA treatment note, May 2016 Maryland Uniform Consultation Referral Form, and June 2016 emergency department note from Anne Arundel Medical Center). If the Veteran has a bilateral lower extremity nerve condition, the examiner must opine whether it is at least as likely as not proximately due to, the result of, or aggravated by (beyond the natural progression) by the service-connected lumbar strain disability. The examiner must discuss the underlying rationale for all opinions, preferably citing to specific evidence in the file supporting conclusions. 7. Obtain an addendum opinion from the January 2020 examiner regarding TDIU, if available, otherwise the opinion must be provided by a similarly qualified provider. The examiner must opine whether there are any functional limitations associated with, and expected effect on, employment resulting from the Veteran’s service-connected disability(ies) on sedentary and physical employment (not including the effects of any non-service connected disabilities). Thereafter, please also identify any/all types of physical or sedentary employment that would remain feasible, despite the service-connected disability(ies), given the Veteran’s level of education and work history. When addressing the functional limitations, the examiner must not consider the Veteran’s age or any non-service connected disabilities. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.