Citation Nr: 21062164 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-47 450 DATE: October 6, 2021 REMANDED The issue of entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. The issue of entitlement to a rating in excess of 30 percent for bilateral pes planus is remanded. The issue of entitlement to a rating in excess of 30 percent for lumbar spine degenerative disc disease ("low back disability") is remanded. The issue of entitlement to a rating in excess of 10 percent for a headache disability is remanded. The issue of entitlement to an earlier effective date for the grant of an increased rating for PTSD is remanded. The issue of entitlement to an earlier effective date for the grant of an increased rating for bilateral pes planus is remanded. The issue of entitlement to an earlier effective date for the grant of service connection for a low back disability is remanded. The issue of entitlement to an earlier effective date for the grant of service connection for a headache disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1987 to December 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of a Veterans Affairs (VA) Regional Office (RO), which (1) increased the rating for PTSD to 50 percent, effective from November 7, 2014; (2) increased the rating for bilateral pes planus to 30 percent, effective from November 7, 2014; and (3) continued 30 and 10 percent ratings for a low back disability and a headache disability, respectively. The Veteran timely perfected an appeal. See November 2016 Notice of Disagreement; July 2017 Statement of the Case; September 2017 VA Form 9. The Board notes that the Veteran requested a Board hearing in his September 2017 VA Form 9. Thereafter, in a July 2020 letter, the Veteran's representative withdrew that request. Accordingly, the Board finds that there are no outstanding hearing requests. Increased Ratings With respect to the Veteran's increased rating claims, the Board notes that the Veteran was last afforded VA examinations to assess the severity of his service-connected headache disability and bilateral pes planus in September 2015, over six years ago, and VA examinations to assess the severity of his service-connected PTSD and low back disability in 2017, over four years ago. Since that time, VA treatment records show that the Veteran's disabilities may have increased in severity. See, e.g., October 2016 VA Treatment Record (detailing increasing foot pain); April 2019 VA Treatment Record (showing that the Veteran requested a return to therapy for increased psychiatric symptoms); September 2019 VA Treatment Record (Veteran reporting increased headache symptoms). Moreover, the March 2017 VA back conditions examination report is not clear as to whether the Veteran experiences additional functional loss during repetitive use and/or during flare-ups, and, if so, to what degree. See Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017) (holding that the Board erred when it relied on a medical opinion that an estimate of range-of-motion loss during a flare-up or after repeated use over time was not possible without observing function under those circumstances). To ensure that the record reflects the current severity of the Veteran's service-connected disabilities on appeal, more contemporaneous examinations are warranted. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month-old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). Earlier Effective Dates In his November 2016 notice of disagreement, the Veteran expressly disagreed with the effective dates assigned for the grant of increased ratings for PTSD and bilateral pes planus. The Veteran also disagreed with the effective dates for a low back disability and a headache disability. See also September 2017 VA Form 9 (reiterating disagreement with effective dates). However, no statement of the case has been issued with respect to those issues. Accordingly, the issue of entitlement to an earlier effective date for the grant of service connection for a headache disability is remanded for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with a statement of the case regarding the issues of entitlement to earlier effective dates for the grants of increased ratings for PTSD and bilateral pes planus and for the grants of service connection for a low back disability and a headache disability. Advise them of the time period in which to perfect the appeal. If the Veteran perfects his appeal of these issues in a timely fashion, then return the case to the Board for its review, as appropriate. 2. Obtain and associate with the Veteran's claims file all outstanding VA treatment records documenting treatment for the issues on appeal. The Veteran should also be given the opportunity to identify and/or submit any additional private treatment records pertinent to his claim. 3. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected PTSD. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. All signs, symptoms, and manifestations of the Veteran's PTSD should be noted. The examiner should fully describe the effects of the Veteran's PTSD on his occupational and social functioning. 4. After all available records have been associated with the claims file, the Veteran should be scheduled for an appropriate VA examination so as to determine the current nature and extent of all impairment due to the Veteran's service-connected bilateral pes planus. The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report must reflect that review was accomplished. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's service-connected bilateral pes planus, including evidence, if any, of swelling, callouses, pain on manipulation, inward bowing of the tendo achillis, and weight bearing over or medial to the great toe. The examiner should discuss whether the symptoms are relieved be shoe or arch support. The examiner must provide a rationale for each of the opinions that takes into account the Veteran's reports of his history and his current symptoms. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case. 5. After all available records have been associated with the claims file, the Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of his low back disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's low back disability. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of extension, forward flexion, left and right lateral flexion, and left and right rotation. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion, extension, and/or rotation at which such pain begins. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. In order to comply with the Court's recent precedential decision in Correia v. McDonald, the examiner must test and record range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, if applicable. 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 explain why that is so. The examiner should also express an opinion concerning whether there would be additional functional impairment, such as weakness, excess fatigability, incoordination, or pain, on repeated use or during flare-ups. The examiner should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. If the Veteran denies any additional pain and/or functional limitation during flare-ups or with repeated use over time, such should be noted in the report. However, if the Veteran is not currently experiencing a flare-up and/or if the Veteran has not been evaluated after repeated use over time, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares or after repeated use over time expressed in terms of the degree of additional range of motion lost, or explain why he or she cannot do so. If the examiner is unable to estimate functional loss in terms of degrees after physical examination and eliciting the pertinent information discussed above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or after repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). If range of motion is not possible, the examiner should indicate whether the Veteran has unfavorable ankyloses of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. The examiner should also state whether the Veteran's service-connected low back disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment (mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerve). The examiner should specifically indicate whether the Veteran has bowel or bladder impairment, erectile dysfunction, or right and/or left lower extremity radiculopathy as a result of his back disability. The examiner should also state whether the Veteran has incapacitating episodes of low back pain, and if so, the duration of the episodes. The examiner must provide a rationale for each of the opinions that takes into account the Veteran's reports of his history and his current symptoms. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case. 6. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected migraine headache disability. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. (Continued on the next page) 7. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the Veteran's claim. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be allowed an appropriate period of time for response. The case should be returned to the Board for further appellate review, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.