Citation Nr: 21065802 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 19-08 789 DATE: October 27, 2021 REMANDED Entitlement to a rating in excess of 10 percent for degenerative arthritis with spinal stenosis, cervical spine (cervical spine disability) is remanded. Entitlement to an effective date prior to November 11, 2017, for the grant of an increased evaluation of 10 percent for cervical spine disability is remanded. Entitlement to service connection for low back disability is remanded. Entitlement to service connection for bilateral knee disability is remanded. Entitlement to service connection for bilateral foot disability is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service from August 1979 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a VA Regional Office (RO). In an August 2020 decision, the Board remanded the Veteran's claims for service connection for low back, bilateral knee and bilateral foot disability. The Board also denied the Veteran's claims for increased ratings for his service-connected cervical spine disability and an effective date prior to November 17, 2017, for the grant of an increased evaluation of 10 percent for cervical spine disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Partial Remand (JMPR), in April 2021, vacating the Board's decision as to the denied claims only. 1. Entitlement to a rating in excess of 10 percent cervical spine disability is remanded. 2. Entitlement to an effective date prior to November 11, 2017, for the grant of an increased evaluation of 10 percent for cervical spine disability is remanded. 3. Entitlement to service connection for low back disability is remanded. 4. Entitlement to service connection for bilateral knee disability is remanded. 5. Entitlement to service connection for bilateral foot disability is remanded. 6. Entitlement to a TDIU is remanded. To ensure that VA has met its duty to assist, the Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Issues 1-6: It does not appear that the RO attempted to obtain any VA treatment records from 2011 to the present. See Medical Treatment Record - Government Facility (January 2018). An April 2016 Report suggests that VA medical centers in Dublin and Charleston were searched for records from August 1979 to April 2016, and found no records. See VA 27-0820 Report of General Information (April 2016). However, no inquiries with the Veteran have been made as to which VA medical center he received treatment; additionally, no records search after April 2016 has been conducted. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue on appeal. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); 38 C.F.R. § 3.159(c). Any outstanding VA treatment records must be obtained on remand. Issue 1: As to cervical spine disability, the December 2017 VA examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (estimating additional functional loss suffered during flare-ups) and the October 2019 VA examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016) (range of motion measurements are required for active and passive motion in both weight and non-weight bearing). It is noted that the January 2017 VA examination did not provide an opinion on the Veteran's range of motion following repeated use over a period of time, stating that she was unable to do so without resorting to speculation, stating that the examination was not conducted after repeated use over a period of time. See Jones v. Shinseki, 23 Vet. App. 382 (2011). The Board finds that this explanation appears nonsensical given that there is no indication that the clinician made any attempt to formulate an opinion based on the Veteran's current lay statements, and the medical record contemporaneous with the period of time prior to January 2014. Therefore, it does not comply with Jones v. Shinseki, 23 Vet. App. 382 (2010) (an examiner must sufficiently explain the reasons for his/her inability to provide an opinion without resort to speculation). Moreover, the December 2017 VA examination report shows that the Veteran reported no flare-ups; however, the examination also noted reports of functional loss as "[p]ain with prolonged sitting/standing; difficulty with lateral rotations/flexion." Id. To that extent, the Board finds that the Veteran's report at this examination periods of worsening pain and resulting symptoms essentially indicate functional loss during flare-ups, albeit not specifically termed as flare-ups. It is noted that the Veteran asserts that the December 2017 VA examination did not adequately reflect his disability picture as the examiner had not considered fatigue, pain, and weakness caused by repetitive use and movement throughout an ordinary day. The Veteran reported that due to the rigors of his workday, his employer had assigned him more "flexible" job duties seemingly so as to lessen the pain and functional impairment caused by his disability, and that day-long use of his cervical spine necessitated "accommodations" at his job. See C&P Exam (December 2017). The Board must rely on independent medical evidence, and not its own judgment, when the rating criteria involve a medical assessment. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (concluding Board may consider only independent medical evidence to support findings and may not rely on its own medical judgment). Therefore, remand is required to obtain a new VA examination to provide the Board with the necessary medical findings, because the available VA examination does not provide complete medical findings. Moreover, retrospective supplemental findings should be requested from the examiner on remand. See 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); see also 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). Issues 3-5: The Veteran asserts that his lower back disability, bilateral knee disability and bilateral foot disability are due to his active service. With regard to his low back disability, the Veteran, via his attorney, asserts that evidence of recent treatment and service records speak to the continuity of the back condition since service. See NOD (January 2017). With regard to his feet, the Veteran reports that his foot problems began in service from prolonged walking or standing on hard or irregular surfaces, and have continued since service. See NOD (January 2017). Additionally, he contends that he experienced a cold injury in South Korea during artillery field training exercise between 1981 and 1982, including frostbite, frostnip and frozen feet due to temperatures below zero. See Medical Treatment Record - Non-Government Facility (March 2018). He reported symptoms at that time of pain, numbness, tingling, and stiffness, and stated that he sought treatment in service and was relieved of duty for several weeks. Id. He reported that tingling, numbness, swelling and sensitivity to cold in the tips and joints of toes persisted. Id. With regard to his bilateral knee disability, the Veteran, via his attorney, has also asserted that it is secondary to his low back disability and his service-connected cervical spine disability. See NOD (January 2017). The Board finds that remand is again necessary as the November 2020 VA examinations and medical opinions (VAMO) are inadequate. 38 C.F.R. § 3.159(c); Stegall v. West, 11 Vet. App. 268 (1998). By way of background, the Veteran's August 1979 Report of Medical History and August 1979 enlistment medical examination are both negative for any mention of current or prior knee, back or foot problems. See STR-Medical (October 2002). Service treatment records (STR) reflect numerous complaints and treatment for neck, shoulder, and knee problems. An April 1980 STR reflects knee injury and pain after a motor vehicle accident, when his knees hit the dashboard. The impression at that time was chondromalacia type pain. STRs reflect complaints in December 1981 of pain and numbness in the toes of both the Veteran's feet, possibly due to chill blains. A July 1984 STR shows that the Veteran injured his left knee playing football or laying on his knee, resulting in sharp pains and necessitating him to lay in bed for a while in the morning before moving; he reported that he was not doing any running and experiencing throbbing pain when sitting. He was assessed with pulled ligament. A July 1985 Report of Medical History shows reports of swollen joints and chondromalacia not present at that time, as well as foot trouble, swollen or painful joints, and cramps in legs. in May 1986, the Veteran complained of a left knee injury after a long run, because he had not run for a while due to assessment of chondromalacia. He was again assessed with chondromalacia. An October 1987 STR reflects right knee pain after twisting it in football game and resulting in swelling. in January 1992, the Veteran complained of right knee pain lasting for three days after twisting his knee and falling while running; he was assessed with mild strain. A June 1993 STR also reflects complaints of foot pain due to running during physical training with an assessment of acute heel tendonitis. A November 1997 STR reflects treatment for shoulder pain without trauma. A July 2001 STR medical report reflects knee problems and nerve problems in the Veteran's shoulder since 1998. A separation physical conducted in July 2001, notes bilateral knee pain aggravated by running. A July 2001 Report of Medical Assessment shows that prior to leaving service the Veteran planned to seek VA compensation for his knees. Post-service, in April 2007, VA treatment records show an x-ray finding of lumbago after the Veteran requested an evaluation due to his chronic low back pain. See Medical Treatment Record - Government Facility (January 2018). A March 2014 private treatment record from Dr. O.A., MD, shows a diagnosis of plantar fascial fibromatosis. See Medical Treatment Record - Non-Government Facility (January 2016). While VA medical examinations and opinions were obtained in November 2020, they are inadequate. First, the medical opinions are inadequate as the essential rationale for the opinions is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The opinion concluded that the Veteran's back and his feet, at the examination diagnosed as hallux valgus, are "less likely than not caused by the claimed in-service injury, event or illness," because the Veteran's report of pain is subjective and there is no chronic diagnosis. See C&P Exam (November 2020). With regard to bilateral knee disability, the examiner concluded that "less likely than not caused by the claimed in-service injury, event or illness," because bilateral knee condition was acute during service. Id. In support of this conclusion, the opinion noted the absence of "chronicity of care." The opinion additionally noted that "symptoms are subjective only." Id. In this instance, the opinion is inadequate because it does not provide the Board a reasoned rationale supporting the conclusion. 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"). The opinion, first, does not reveal a reasoned medical rationale connecting the absence of objective findings to the conclusion. Significantly, the opinions make no mention of the multiple instances documented in STRs and detailed above of knee injuries, as well as treatment for knees and feet. The opinions thus appear of little probative value due to their findings that do not reflect any review of the evidence of record, particularly the STRs. Second, the opinions seem to rely, for the most part, on the absence of documented medical treatment records after service showing complaints or treatment for his low back, bilateral knee and bilateral foot disabilities without any explanation as to why this is dispositive. It is noted that the laws pertaining to service connection do not require continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). Moreover, the Veteran is competent to report signs and symptoms of his disability. See Barr v. Nicholson, 21 Vet. App. 303. Here, the record reflects that the Veteran has reported low back, bilateral knee and bilateral foot symptoms during and since service. See VA 21-4138 Statement In Support of Claim (May 2014); C&P Exam (November 2020). The opinions here, however, are predicated on the absence of objective data or information without any consideration of the Veteran's reports of continued symptoms during and since service, despite the Board's specific instructions to address his lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [the Veteran's] testimony when formulating her opinion renders that opinion inadequate."). The Board specifically requested that consideration is given to the Veteran's lay statements. See BVA Decision (August 2020); Stegall, supra. The Board again notes the Veteran is competent to attest to observable symptomatology and, if rejected or found unpersuasive in view of other facts, this must be explained. Here, the November 2020 VA examinations and opinions do not reflect any consideration of the lay statements to specifically include his continued assertions of low back, bilateral knee and bilateral foot symptoms during and since service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). The Veteran's reports of symptoms of knee pain and foot pain while in service are also supported by the available STRs. The opinion, however, does not reveal a rationale or explanation discounting the Veteran's competent observations. It is noted that the clinician is not required to accept the Veteran's theory that his military service caused his low back, bilateral knee and bilateral foot disability, or that he had symptoms associated with the 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). If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Third, the opinions do not identify or explain the relevance or significance of any history, clinical findings, etc., relied upon in reaching the conclusion. See Stefl, Stegall, both supra; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). Significantly, the onions do not address or provide the etiology of the diagnoses and assessments of record, including those of lumbago, knee strain and plantar fascial fibromatosis. Nor do the opinions address the March 2018 Protocol Examination History for Cold Injuries as the Board requested in its remand. Fourth, as to secondary service connection, the November 2020 VAMOs contain conclusions that are not fully supported and/or explained. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). The opinions lack an essential rationale although they conclude that that bilateral foot disability, bilateral knee disability and low back disability are unrelated to the Veteran's service-connected cervical spine disability because they are "not medically related", there is "association between" the conditions and they are "a separate entity." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion."). Also, the VAMO did not provide separate rationales to support the causation and aggravation elements of the secondary service connection. See Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018) (an examiner must provide a rationale that deals with causation and aggravation as independent concepts). Lastly, with regard to whether the Veteran's bilateral foot disability is secondary to his service-connected cervical spine disability, the examiner indicated that a "thorough review of medical literature failed to demonstrate a causal relationship." See C&P Exam (November 2020). However, the opinion did not explain how the general medical research applied to the Veteran's particular circumstances. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (in cases involving herbicide exposure and cancer, examiner's rationale may not be based solely on general medical articles); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner's conclusion). Given the above, the Board finds that there has not been substantial compliance with the Board's prior remand directives. See Stegall, supra. Issue 6: The claim for a TDIU is inextricably intertwined with the pending claims that are being remanded herein, and adjudication of a TDIU must be deferred until the intertwined issues are decided. Harris v. Derwinski, 1 Vet. App. 180 (1991). 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. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records through the Present. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine disability and an addendum opinion for the below identified past examination. 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. As to the below requested measurements, if it is not possible to provide a specific measurement without speculation, the examiner 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 examiner (does not have the knowledge or training). Current Findings (a.) Test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b.) Indicate whether and at what point during the range of motion (ROM) testing the Veteran experiences any limitation of motion that is specifically attributable to pain. (c.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and ESTIMATE the degree of functional loss during flare-ups and with repeated use. Retrospective Findings (d.) provide an addendum retrospective opinion for the Veteran's service-connected bilateral knee disability to supplement the December 2017 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. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back, bilateral knee and bilateral foot disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Detail the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms; if there is any medical reason to accept or reject the proposition that his reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. The opinion should reflect, among other things, include a discussion of the Veteran's documented history, including extensive documented treatment for and reports of bilateral knee injuries and pain as well as his intent to file a disability claim for bilateral knee disability at the time of separation in July 2001, and several documented reports of and treatment for bilateral foot pain. The examiner must opine on: (a.) whether it is at least as likely as not that it had its onset during active service, or is otherwise related to an in-service injury, event, or disease. (b.) whether it is at least as likely as not (i) proximately due to a service-connected disability, or (ii) aggravated beyond its natural progression by a service-connected disability, to include walking with an altered gait. Aggravation means any increase in severity beyond the natural progression; the worsening need not be permanent but must include some change in severity that is at least intermittent or recurring that is proximately due to or the result of the Veteran's service-connected disability. For arthritis, whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. 4. Ensure that the VA medical opinion obtained include 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 next page) 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.