Citation Nr: 21063216 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-01 922 DATE: October 13, 2021 REMANDED The issue of entitlement to an evaluation in excess of 10 percent disabling for the period prior to November 17, 2017, and in excess of 20 percent disabling for the period thereafter for service-connected thoracolumbar intervertebral disc syndrome (IVDS) and lumbar degenerative joint disease (DJD) is remanded. The issue of entitlement to an evaluation in excess of 20 percent disabling for service-connected left lower extremity radiculopathy, sciatic nerve, is remanded. The issue of entitlement to an evaluation in excess of 10 percent disabling for service-connected right lower extremity radiculopathy, sciatic nerve, is remanded. The issue of entitlement to service connection for traumatic brain injury (TBI) is remanded. The issue of entitlement to service connection for intracranial meningioma, claimed as brain tumor secondary to TBI, is remanded. The issue of entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1977 to July 1981. In October 2021, the Veteran testified before the undersigned Veterans Law Judge at a travel board hearing. 1. Entitlement to an evaluation in excess of 10 percent disabling for the period prior to November 17, 2017, and in excess of 20 percent disabling for the period thereafter for service-connected thoracolumbar IVDS and DJD. 2. Entitlement to an evaluation in excess of 20 percent disabling for service-connected left lower extremity radiculopathy, sciatic nerve. 3. Entitlement to an evaluation in excess of 10 percent disabling for service-connected right lower extremity radiculopathy, sciatic nerve. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. First, based on testimony provided at the October 2021 travel board hearing, the Board finds that there may be outstanding VA and private treatment records to obtain and associate with the claim file. In addition, the Board finds that new VA examinations are needed. The November 2017 VA examination for the Veteran's spine did not test passive range of motion and, therefore, is inadequate. See Correia v. McDonald, 28 Vet. App. 158 (2016). Similarly, in evaluating repeated use over time, the examination report states that because the Veteran was "[n]ot examined after reps over time," it was "[u]nable to say w/o mere speculation" whether "pain, weakness, fatigability or incoordination significantly limit functional ability . . ." However, such an opinion does not comply with the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and is subsequently inadequate. Finally, at the October 2021 travel board hearing, the Veteran indicated a worsening of his symptoms. Accordingly, a new VA examination is needed. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 4. Entitlement to service connection for TBI. 5. Entitlement to service connection for intracranial meningioma, claimed as brain tumor secondary to TBI. 6. Entitlement to service connection for a neck disability. In addition, based on testimony provided at the October 2021 travel board hearing, the Board finds that VA examinations and opinions are needed for the claimed service-connected disabilities on appeal. In particular, the Board asks that an examiner address the Veteran's contentions regarding in-service injuries. The Board notes that a history of in-service injury related to helicopter fall/accident has been conceded by the RO. See Rating decision, October 2000. At the travel board hearing, the Veteran described additional injury related to his neck and head. It was also contended that the Veteran experienced headaches in service. The Board acknowledges the November 2017 VA opinion regarding the claimed neck disability and secondary service connection, but this opinion does not address aggravation. Accordingly, it is inadequate, and a new VA opinion is needed. Finally, the Board notes that there are service treatment records located on the electronic docket and February 9, 1998, and February 12, 2016, that are difficult to read. If possible, more legible copies should be associated with the claim file upon remand. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. In addition, the Board notes that there are service treatment records located on the electronic docket and February 9, 1998, and February 12, 2016, that are difficult to read. If possible, more legible copies should be associated with the claim file upon remand. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of severity of his spine disability. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. 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 is asked specifically to provide range of motion testing (ROM) for the spine for active motion, passive motion, 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. (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. (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 ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to the spine disability and discuss the effect of the Veteran's spine disability on any occupational functioning and activities of daily living. The examiner should state whether or not there is any neurologic disability that is the result of the spine disability. 3. Upon completion of the above, schedule the Veteran for VA examinations to clarify the diagnoses of the claimed service-connected disabilities on appeal and to address the etiology of any diagnosed disabilities. For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran's active duty service. The examiner is asked to specifically address: (a) The Veteran's conceded history of in-service injury related to helicopter fall/accident. See Rating decision, October 2000. (b) The Veteran's descriptions of his in-service injuries related to his neck and head. (c) The contention that the Veteran experienced headaches in service. In addition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that claimed neck disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's service-connected thoracolumbar IVDS and DJD disability. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. 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. A detailed rationale is requested for all opinions provided. 4. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.