Citation Nr: 21062528 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-32 579 DATE: October 7, 2021 ORDER Service connection for prostatitis is granted. Service connection for fatigue is granted. REMANDED The claim of entitlement to service connection for right lower extremity radiculopathy is remanded. The claim of entitlement to service connection for left lower extremity radiculopathy is remanded. The claim of entitlement to an initial rating higher than 10 percent for right hip limited extension is remanded. The claim of entitlement to a compensable rating for right hip limited flexion is remanded. The claim of entitlement to a compensable rating for right hip thigh impairment is remanded. The claim of entitlement to a rating higher than 10 percent for right knee residuals of right femur fracture limited flexion is remanded. The claim of entitlement to an initial compensable rating for right knee residuals of right femur fracture limited extension is remanded. The claim of entitlement to a separate rating for right knee instability is remanded. The claim of entitlement to an initial rating higher than 10 percent for right ankle lateral collateral ligament with deltoid ligament sprain and tendonitis is remanded. The claim of entitlement to a rating higher than 10 percent prior to July 24, 2019, and higher than 20 percent thereafter, for lumbosacral strain is remanded. FINDINGS OF FACT 1. The Veteran's prostatitis is related to his service. 2. The Veteran's fatigue is related to his service. CONCLUSIONS OF LAW 1. The criteria are met for service connection for prostatitis. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. 2. The criteria are met for service connection for fatigue. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2005 to September 2005, from January 2006 to April 2007, and from February 2009 to April 2014. This appeal is from August and October 2017 rating decisions. In March 2019, the Board remanded these claims for additional development. The May 2021 arguments also specifically addressed the severity of the Veteran's headaches, which are not under appeal. That issue was decided in March 2019 Board decision. The Veteran is advised to file a claim if he wishes to pursue a higher rating for headaches. Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Service connection for prostatitis is granted. The Veteran reports that his frequent urination began while in service, and has persisted since then. His STRs show urinary urgency in June 2011. The July 2019 VA examiner diagnosed him with prostatitis, and opined that it was related to his service. The examiner reviewed the record and noted that there was evidence of treatment during service and continuously since then. The examiner indicated that prostatitis has been associated with service in Southwest Asia during the Gulf War. The Veteran served in Iraq. The examiner noted the Veteran did not show any abnormalities on urinalysis conducted in conjunction with the examination, but that physically he had symptoms consistent with an enlarged or infected prostate. Accordingly, service connection for prostatitis is granted. 2. Service connection for fatigue is granted. The Veteran asserts that he has sleep disturbance related to service. The record shows that he has had multiple sleep studies, and is diagnosed with hypersomnolence and fatigue. His STRs show complaints of sleep disturbances. The July 2019 VA examiner opined the Veteran's sleep disturbance, pertaining to trouble breathing, was related to his service-connected PTSD, and that was granted service connection by the AOJ (agency of original jurisdiction). The examiner further opined that the Veteran's fatigue was more likely related to his service in the Gulf War, and that the Veteran's fatigue was chronic. The March 2017 VA examiner opined that sleep impairment and daytime fatigue were part of his PTSD. There are no other medical opinions addressing a relationship to service. However, the record shows that his fatigue has been attributed to his service and/or service connected disabilities in multiple ways. Accordingly, service connection is granted for fatigue. REASONS FOR REMAND 1. The claim of entitlement to service connection for right lower extremity radiculopathy is remanded. 2. The claim of entitlement to service connection for left lower extremity radiculopathy is remanded. The Veteran complains of symptoms of pain and paresthesia in his lower extremities and has been prescribed gabapentin for those symptoms. His STRs show some complaints during service. His claim has been denied on the basis that radiculopathy has not been diagnosed.¬¬ The Board finds that a remand is required to obtain another VA examination. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that pain, even in the absence of a presently-diagnosed condition, can be viewed as a "disability" when there is evidence of functional impairment. 3. The claim of entitlement to an initial rating higher than 10 percent for right hip limited extension is remanded. 4. The claim of entitlement to a compensable rating for right hip limited flexion is remanded. 5. The claim of entitlement to a compensable rating for right hip thigh impairment is remanded. 6. The claim of entitlement to a rating higher than 10 percent for right knee residuals of right femur fracture limited flexion is remanded. 7. The claim of entitlement to an initial compensable rating for right knee residuals of right femur fracture limited extension is remanded. 8. The claim of entitlement to a separate rating for right knee instability is remanded. 9. The claim of entitlement to an initial rating higher than 10 percent for right ankle lateral collateral ligament with deltoid ligament sprain and tendonitis is remanded. 10. The claim of entitlement to a rating higher than 10 percent prior to July 24, 2019, and higher than 20 percent thereafter, for lumbosacral strain is remanded. The July 2019 VA examiner was asked to elicit from the Veteran details of his function, including during flares and after repetitive use, and to use those statements to provide an opinion on whether and to what extent he had additional loss of range of motion at those times. For each of the orthopedic disabilities (right hip, right knee, right ankle, and back), the VA examiner opined against any additional loss of range, but without clearly explaining the reason for the opinion. Rather, for each disability, he noted the Veteran would not have increased loss of motion but would have "increased symptoms as mentioned above." Unfortunately, it is not clear what statements of facts the examiner is referring to "above." The Veteran told the examiner that pain from his ankle and his hip would cause him to "hobble," which suggests additional or more severe limitations. The examiner is permitted to opine against any additional severe, but must explain the reason behind the opinion. These July 2019 examinations do not comply with Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), which the Board specifically directed. Stegall v. West, 11 Vet. App. 268 (1998). Further, the Board notes that the Veteran's May 2021 arguments appear to assert an increase in symptoms of the right hip and the right knee. He complains of increased muscle atrophy, which has been attributed to his hip. He complains of instability, and that has symptoms from the residual of the right femur fracture are increasing. These assertions will be investigated in the updated examinations. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA form 21-4142 in order to associate private records, the most recent of which are dated in February 2018, or to provide copies of records himself. 2. Obtain updated VA treatment records. 3. After completion of the 1st and 2nd directives, schedule the Veteran for an in-person examination with an appropriate medical professional. The entire claims file and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. After reviewing the file and examining the Veteran, the examiner should diagnose any disability regarding the bilateral lower extremities with symptoms such as pain and paresthesia found to be present, specifically considering that pain alone may suffice, and discuss whether any bilateral lower extremity disability with symptoms such as pain and paresthesia results in functional impairment such that the bilateral lower extremity disabilities may be considered a disability for VA compensation purposes. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current bilateral lower extremity disability (or symptomatology of the bilateral lower extremity that results in functional impairment) had its onset during active service or is related to any incident of service or is secondary to or aggravated by any service connected disability to include the Veteran's back disability. The examiner is advised the record shows treatment for paresthesia in November 2017, and he was prescribed medication for radicular symptoms in January 2018. His STRs show complaints of burning, pain, numbness, and tingling in December 2009. All opinions must be supported with explanation. 4. After completion of the 1st and 2nd directives, schedule the Veteran for an appropriate examination for a report on the current severity of service-connected right hip limited flexion, limited extension, and impairment of thigh. The examiner is asked to elicit from the Veteran a detailed report of his symptoms in general, and during flares and after repetitive use. The examiner is asked to conduct range of motion measurements in active and passive motion, in both weightbearing and non-weightbearing positions, and after three repetitions. The examiner is asked to provide an opinion on the extent of any additional functional loss during flares and after repetitive use, in terms of degrees of motion, if possible. If not possible, or not finding any additional loss, an explanation must be provided. All opinions must be supported with explanation. 5. After completion of the 1st and 2nd directives, schedule the Veteran for an appropriate examination for a report on the current severity of service-connected right knee limited flexion and limited extension. The examiner is asked to elicit from the Veteran a detailed report of his symptoms in general, and during flares and after repetitive use. The examiner is asked to conduct range of motion measurements in active and passive motion, in both weightbearing and non-weightbearing positions, and after three repetitions. The examiner is asked to provide an opinion on the extent of any additional functional loss during flares and after repetitive use, in terms of degrees of motion, if possible. If not possible, or not finding any additional loss, an explanation must be provided. The examiner is asked to elicit from the Veteran a detailed report of his reported right knee instability, and to conduct diagnostic testing for whether the Veteran has lateral instability and or recurrent subluxation. All opinions must be supported with explanation. 6. After completion of the 1st and 2nd directives, schedule the Veteran for an appropriate examination for a report on the current severity of service-connected right ankle. The examiner is asked to elicit from the Veteran a detailed report of his symptoms in general, and during flares and after repetitive use. The examiner is asked to conduct range of motion measurements in active and passive motion, in both weightbearing and non-weightbearing positions, and after three repetitions. The examiner is asked to provide an opinion on the extent of any additional functional loss during flares and after repetitive use, in terms of degrees of motion, if possible. If not possible, or not finding any additional loss, an explanation must be provided. All opinions must be supported with explanation. 7. After completion of the 1st and 2nd directives, schedule the Veteran for an appropriate examination for a report on the current severity of service-connected lumbosacral strain. The examiner is asked to elicit from the Veteran a detailed report of his symptoms in general, and during flares and after repetitive use. The examiner is asked to conduct range of motion measurements in active and passive motion, in both weightbearing and non-weightbearing positions, and after three repetitions. The examiner is asked to provide an opinion on the extent of any additional functional loss during flares and after repetitive use, in terms of degrees of motion, if possible. If not possible, or not finding any additional loss, an explanation must be provided. (Continued on the next page) All opinions must be supported with explanation. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.