Citation Nr: 21062725 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-29 644 DATE: October 12, 2021 REMANDED Entitlement to a rating in excess of 10 percent for residuals of right ankle status post right achilles tendon repair (hereinafter right ankle disability) is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a migraine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a radiculopathy disability, to include sciatica, of the left lower extremity (LLE) is remanded. Entitlement to service connection for a radiculopathy disability, to include sciatica, of the right lower extremity (RLE) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1992 to June 1993. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board then remanded the claims in February 2020 for further development. During remand status, a December 2020 rating decision granted service connection for back injury (previously claimed as low back pain). The Board finds that the Veteran's claimed symptoms for his lumbar spine disability are encompassed by the RO's grant. In this regard, at the December 2020 VA examination, the Veteran reported symptoms of chronic low back pain that worsen when climbing ladders, lifting, pulling, pushing, and kneeling. The Veteran's lumbar spine disability is rated pursuant to Diagnostic Code 5242, which considers limitation of motion of the lumbar spine. See 38 C.F.R. § 4.71a; see also 38 C.F.R. § 4.59 (providing that consideration should be given to, among other things, painful motion in evaluating musculoskeletal disabilities). Thus, as the RO granted in full the benefit sought by the Veteran in this matter, there is no remaining allegation of error of fact or law for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The RO, additionally, sent to the Veteran a December 2020 supplemental statement of the case that addressed the remaining above issues on appeal. Lastly, in remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to a rating in excess of 10 percent for right ankle disability is remanded. The Veteran, and his representative, contends that he is entitled to a higher rating for his right ankle disability. For reasons explained below, the Board finds that remand is necessary. As noted above, a February 2020 Board decision remanded the claim for, among other things, an examination to determine the current severity of the Veteran's disability. Although a December 2020 examination report was obtained, the Board finds that there has not been substantial compliance with the Board's remand. First, the December 2020 examination report is inadequate for rating purposes because it is not shown to be in compliance with the Court's ruling in Correia v. McDonald, 28 Vet. App. 158 (2016). While the October 2020 examiner did answer questions as to pain with weightbearing and non-weightbearing and passive range of motion (ROM), the examiner did not provide adequate explanations or rationale for the answers and the examiner did not provide specific values for active or passive ROM testing, weight-bearing or non-weight-bearing. Second, the December 2020 VA examination report reveals that the Veteran reported flare-ups of his right ankle disability when a flare-up was not observable at the time of examination. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Id. at 34. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). In this instance, the above examination was not conducted during a period of flare-ups and the Veteran reported experiencing flares; although the examination report shows that the examiner, to some extent, inquired as to the severity, frequency, and duration of the flares, it does not reveal any meaningful estimate of the additional functional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. Indeed, the report of examination, in this regard, is incomplete as the examiner did not answer in the affirmative or negative as to whether he or she was able to describe the Veteran's reports of flares in terms of ROM. Therefore, as the examiner provided deficient explanations and failed to give adequate findings in regard to the Correia and Sharp standards, the Board finds that there has not been substantial compliance with its prior remand, and therefore further remand is required. Stegall v. West, 11 Vet. App. 268 (1998). Next, the record reflects that, aside from the December 2020 examination, the Veteran underwent a VA examination for his right ankle disability in May 2011. The Board has reviewed the examination report and finds that it is not adequate. The VA examination report is inadequate for rating purposes because it does not adequately reveal that ROM testing pursuant to Correia, 28 Vet. App. 158, was conducted. In this regard, although the examination report reflects that passive ROM was unchanged from active ROM, the report does not show an adequate explanation or rationale for whether these findings are for both weight-bearing and non-weight-bearing, or just weight-bearing. Therefore, given the above, remand is required for retrospective findings that fully satisfy the requirements of Sharp and Correia. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"); see also Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past); Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). 2. Entitlement to service connection for a right hip disability is remanded. 3. Entitlement to service connection for a left hip disability is remanded. 4. Entitlement to service connection for a cervical spine disability is remanded. 5. Entitlement to service connection for a migraine disability is remanded. 6. Entitlement to service connection for a right knee disability is remanded. Issues 2-6. The Veteran, and his representative, contends that his disabilities stem from an in-service injury. In this regard, the Veteran argues that while in service, a pile of heavy wooden blocks fell on him. See generally Hearing Transcript (April 2019). To ensure that VA has met its duty to assist, the claim must be remanded for further development. Barr, 21 Vet. App. 303. Here, the medical evidence of record is inadequate to decide the claim on appeal. VA medical opinions, dated in December 2020, reflect that the Veteran's disabilities were less likely than not incurred in or caused by an in-service injury, event or illness. The Board finds the VA medical opinions are inadequate as the essential rationale for the opinions is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The opinions, in this regard, do not show a reasoned medical explanation connecting the medical findings to the conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinions, indeed, are not shown to be supported by a detailed rationale that the Board can weigh against the evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this instance, the opinions make several medical findings, such as finding that the Veteran's service treatment records do not show any hip, neck, headache, or right knee condition, however, the essential rationale connecting the medical findings to the conclusions is not discernable and the Board is not competent to substitute its own medical rationale for that of the opinions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, the opinions do not discuss or explain evidence to the extent that the Board is able to discern that the clinician was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. Indeed, much of the opinions reflect medical findings and conclusions, however, the opinions are absent a reasoned rationale or medical explanation supporting the reached conclusions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("a medical opinion . . . must support its conclusion with analysis that the Board can consider and weigh against contrary opinions"). In sum, the absence of a meaningful discussion does not show awareness of relevant facts and therefore casts doubt on the medical opinions' conclusions and, accordingly, the Board finds the medical opinions inadequate for adjudicative purposes. Further, the December 2020 VA medical opinion, concerning the Veteran's hips, reveals that the clinician found no current disability. However, even without an underlying diagnosis, symptoms can still constitute a current disability, for VA compensation purposes, if it reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, at the December 2020 VA examination, the Veteran asserted that he had chronic aching and weakness in both hips, and that he took Tramadol and Methocarbamol for the pain. The opinion, nevertheless, does not show whether the Veteran's claimed symptomatology reaches the level of functional impairment of earning capacity. Thus, as there is an indication that the Veteran has pain with functional impairment, the examiner should have considered whether it is a disability for VA purposes. Accordingly, the Board finds that there has not been substantial compliance with its prior remand, and therefore further remand is required. Stegall, 11 Vet. App. 268. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. 303. Next, the Board observes a March 2019 private medical opinion reflecting the conclusion that the Veteran's hip pain is related to service. In support of this conclusion, the opinion notes that the clinician has known the Veteran for 10 years and that all his pain is in areas directly related to the site of his in-service injury. The private medical opinion, however, is inadequate to support the claim. Specifically, the opinion is inadequate because it does not include a reasoned medical explanation connecting the medical findings to the conclusion. Nieves-Rodriguez, 22 Vet. App. at 301 (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). For instance, the opinion notes the Veteran's location of pain, the Board, nevertheless, is unable to locate a reasoned medical rationale connecting the medical finding to the conclusion. Given the above, the Board finds the private medical opinion is inadequate and insufficient to decide the claim. Lastly, the Board recognizes that the Veteran, through his representative, expressed his intention to challenge the competency of the clinician who provided the December 2020 VA examinations and medical opinions. See Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019). As the Board has found the medical opinions inadequate, this challenge is moot. 7. Entitlement to service connection for a radiculopathy disability, to include sciatica, of the LLE is remanded. 8. Entitlement to service connection for a radiculopathy disability, to include sciatica, of the RLE is remanded. Issues 7-8. The Veteran, and his representative, contends that his disabilities stem from the in-service injury, in which, a pile of heavy wooden blocks fell on him. See Hearing Transcript at 11 (April 2019). The Board finds remand is necessary. The record reflects that the Veteran underwent a VA examination for his lumbar spine disability in December 2020. The VA examination report reveals that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The report also shows negative results for the straight leg raising test. It is noted that a positive test suggests radiculopathy, often due to disc herniation. The record, however, shows that the Veteran has been found to have radicular symptoms of the lower extremities. In this regard, private treatment record, dated in March 2014, reflects a diagnosis for lumbosacral neuritis. Further, the treatment record shows bilateral positive results for the straight leg raising test. The VA examination report, however, does not reveal that this evidence was considered in finding that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Thus, in this instance, the report of examination is not shown to be based on an accurate factual premise with consideration of the Veteran's prior medical history, and, accordingly, the Board finds the December 2020 VA examination report, to this extent, inadequate. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Given the above, the Board may not rely upon the VA examination report in its present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Barr, 21 Vet. App. 303 (2007). Lastly, the Board recognizes the March 2019 private medical opinion reflecting the conclusion that the Veteran has sciatica and that it is related to service. However, this medical opinion is inadequate for similar reasons explained above. The opinion, in this instance, is inadequate because it does not reveal a reasoned medical explanation connecting the medical finding to the conclusion. Nieves-Rodriguez, 22 Vet. App. at 301. As discussed above, the opinion notes the Veteran's location of pain, the Board, nevertheless, is unable to locate a reasoned medical rationale connecting the medical finding to the conclusion. Thus, the Board finds the private medical opinion is inadequate to support the claim. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs or symptoms of his right ankle disability, bilateral hip pain, cervical spine disability, migraines disability, right knee disability, and radiculopathy disability of the lower extremities, to include from Hernando Healthcare Associates. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from February 2020 to the Present. 3. Obtain addendum opinion(s) from an appropriate clinician(s) regarding the Veteran's (1) bilateral hip pain, (2) cervical spine disability, (3) migraines disability, (4) right knee disability, and (5) radiculopathy disability of the lower extremities. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician(s). NOTE (1): The opinion should reflect consideration of the pertinent evidence of record (e.g., the Veteran's documented relevant history and assertions). In other words, consider and expressly address the Veteran's theory that his disabilities stem from service. NOTE (2): The clinician is not required to accept the Veteran's theory that his military service caused his disabilities, or that he had symptoms associated with either disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: Bilateral Hip Pain (a) Whether it is at least as likely as not that the Veteran has, or has had, any hip disability at any time during the pendency of the claim or recent to the filing of the claim. Explain. NOTE: Pain that causes functional impairment is a disability for VA compensation purposes, even if there is no underlying diagnosis. (b) If so, opine on whether any hip disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that it stems from in-service injury, described as a pile of heavy wooden blocks falling on him. See generally Hearing Transcript (April 2019). Explain. Cervical Spine Disability (c) Whether any cervical spine disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that it stems from in-service injury, described as a pile of heavy wooden blocks falling on him. See generally Hearing Transcript (April 2019). Explain. Migraines Disability (d) Whether any migraines disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that it stems from in-service injury, described as a pile of heavy wooden blocks falling on him. See generally Hearing Transcript (April 2019). Explain. Right Knee Disability (e) Whether any right knee disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that it stems from in-service injury, described as a pile of heavy wooden blocks falling on him. See generally Hearing Transcript (April 2019). Explain. Radiculopathy Disability of the Lower Extremities (f) Whether it is at least as likely as not that the Veteran has, or has had, any radiculopathy disability of the lower extremities at any time during the pendency of the claim or recent to the filing of the claim. Consider and expressly address medical evidence reflecting that the Veteran was diagnosed with sciatica and lumbar neuritis. Explain. If so, opine on: (g) Whether any radiculopathy disability of the lower extremities at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that it stems from in-service injury, described as a pile of heavy wooden blocks falling on him. See generally Hearing Transcript (April 2019). Explain. (h) Whether any radiculopathy disability of the lower extremities is at least as likely as not (1) proximately due to service-connected lumbar spine disability, or (2) aggravated beyond its natural progression by service-connected lumbar spine disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. 4. Obtain retrospective findings from an appropriate clinician to determine the severity of the Veteran's service-connected right ankle disability for the below identified past examinations. If it is not possible to provide a specific measurement without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). In rendering the below, the clinician should estimate the effective ROM for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. (a) Provide an addendum retrospective opinion for the Veteran's service-connected right ankle disability to supplement the December 2020 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (b) Provide an addendum retrospective opinion for the Veteran's service-connected right ankle disability to supplement the May 2011 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. 5. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page) 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.