Citation Nr: 21063627 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 14-07 343 DATE: October 14, 2021 REMANDED Entitlement to a rating in excess of 20 percent for lumbosacral strain with lumbar degenerative spine disease (back condition) is remanded. Entitlement to a rating in excess of 30 percent for status post-surgical repair of right shoulder (right shoulder condition) is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia of right knee (right knee condition) is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia of left knee, status post meniscus tear (left knee condition) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1992 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2017. The Veteran's wife, C.M., was present as a witness. A transcript of the hearing is of record. The Board remanded this matter in December 2017. In a June 2020 decision, the Board denied the Veteran's claims. The Veteran appealed the Board's June 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 Order, the Court vacated the June 2020 Board decision, and remanded the issues stated above to the Board for further development. Entitlement to a rating in excess of 20 percent for lumbosacral strain with lumbar degenerative spine disease (back condition), entitlement to a rating in excess of 30 percent for status post-surgical repair of right shoulder (right shoulder condition), entitlement to a rating in excess of 10 percent for chondromalacia of right knee (right knee condition), and entitlement to a rating in excess of 10 percent for chondromalacia of left knee, status post meniscus tear (left knee condition), are remanded. In the May 2021 Court Order, the Court determined that the Board erroneously relied on the May 2018 back, shoulder, and knee VA examinations. Specifically, regarding the back VA examination, the examiner did not comply with Correia v. McDonald, 28 Vet. App. 158 (2016), and it was based on an inaccurate factual premise. The examiner did not provide any rationale for being unable to perform passive motion and also found that there was no evidence of intervertebral disc syndrome (IVDS); however, a May 2012 VA treatment record showed an IVDS diagnosis. Regarding the shoulder VA examination, the examiner did not comply with Correia, and also did not describe pain and/or functional loss in terms of degrees of range of motion lost. Regarding the knee VA examination, the examiner did not comply with Sharp v. Shulkin, 29 Vet. App. 34 (2017). Therefore, as the May 2018 VA examinations did not fully comply with Correia, or Sharp, the Board finds that a remand is necessary to obtain a retrospective opinion regarding the severity of the Veteran's back, right shoulder, and bilateral knee conditions. The Board finds that a VA examination should also be provided to determine the current severity of the Veteran's back, right shoulder, and bilateral knee conditions. The matters are REMANDED for the following actions: 1. Obtain any outstanding private or VA treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, schedule the Veteran for examinations with an appropriate examiner to ascertain the current nature and severity of the Veteran's service-connected back, right shoulder, and bilateral knee conditions. The claims file and a copy of this remand must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. Following a review of the records, the examiner must determine the following: 3. Test and document the range of motion (ROM) for the Veteran's back, right shoulder, and bilateral knees in active motion, passive motion, on weight-bearing and non-weight-bearing, on both an initial and after repetitive use basis. For each ROM, the examiner is asked to explicitly identify the degree in which pain is first evidenced by the Veteran's visible behavior. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, a thorough explanation should be provided. 4. Identify the nature and severity of all current manifestations of the Veteran's service-connected back, right shoulder, and bilateral knee conditions. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. 5. The examiner should address whether there is any current intervertebral disc syndrome, and should address the May 2012 diagnosis of intervertebral disc degeneration. 6. If the Veteran describes flare-ups, after documenting the frequency and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. 7. Provide a retrospective opinion, utilizing the Veteran's medical records and lay history, and opine as to the severity of the Veteran's service-connected back, right shoulder, and bilateral knee conditions from May 2018 to present. 8. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to ROM, if possible, and the examiner should state whether such limitation is mild, moderate, or severe in nature. 9. If the examiner is unable to render such an opinion, the examiner should specifically state why and provide a rationale for the determination. 10. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. 11. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. 12. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Saudiee 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED