Citation Nr: 21066930 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-13 743 DATE: November 2, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected lumbar spine is remanded. Entitlement to a compensable disability rating for the Veteran's service-connected back surgery scars is remanded. Entitlement to service connection for the Veteran's claimed neck disability is remanded. Entitlement to service connection for an upper extremity nerve condition, to include as secondary to the Veteran's claimed neck condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1988 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an August 2021 Virtual Hearing before the undersigned Veteran's Law Judge. A transcript of this hearing is of record. Lumbar Spine While the Veteran was provided with a February 2016 VA examination regarding his lower back condition, however, this examination does not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As such, the Board finds this examination to be inadequate and therefore, the Veteran must undergo an additional examination to address the severity of his lumbar spine in light of the criteria of Correia and Sharp. Scars During his August 2021 Board Hearing, the Veteran reported that his lower back scars were both painful and felt like needles were being stuck in them. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person, such as deformity, swelling, and certainly pain. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. See Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). However, the Veteran does not specify which of his scars are painful and tender, and the VA examinations in the claims file do not indicate whether any of the Veteran's scars are painful. As such, the Board finds that a remand is necessary to provide the Veteran with a VA examination which addresses his competent lay statements regarding the pain/instability of his service-connected scars. Neck Condition The Veteran submitted a June 2014 private medical opinion wherein the private physician opined that the Veteran's in-service reports of shoulder pain/discomfort was "most likely from his cervical spine." However, the private examiner does not provide an adequate rationale in support of this opinion. Additionally, the private examiner may also imply that the Veteran's cervical spine condition is related to his lumbar spine condition, but again, there is almost no explanation in the examiner's insufficient rationale. The Veteran was provided with a February 2016 VA Neck examination. The examiner opined that the Veteran's current neck disability was less likely than not etiologically related to the Veteran's active-duty service. The rationale provided was that the examiner was unable to find supportive evidence for a neck injury, disability, or complaints of an injury in service or within a year of discharge. This examiner does not address whether the Veteran's neck condition is secondary to his service-connected lower back. During his August 2021 Board hearing, the Veteran testified that he complained of shoulder pain in service which he felt was caused by compression in his neck from lifting supplies for hours each day and filling storerooms with supplies. The Veteran reported that he was always lifting boxes on his shoulders to hand off to the next person and would rest the boxes on his head and shoulders. Further, the Veteran's wife submitted a June 2021 lay statement wherein she indicated that the Veteran's neck condition/symptoms began sometime in 1996, while the Veteran was on active duty. Given the conflicting medical opinions, and the Veteran's clarifying testimony, the Board finds that an additional examination and medical opinion is required by an orthopedic specialist to assess the etiology of the Veteran's diagnosed neck condition. Nerve Condition. Finally, the Board notes the issue of service connection for an upper extremity nerve condition, must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issue of service-connection for the Veteran's neck disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, with an examiner who has yet to examine the Veteran, to determine the current nature and severity of his lower back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. (a.) The examiner must 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. 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 should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (b.) 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. If the Veteran is not currently experiencing a flare-up, then based on relevant information elicited from the Veteran, a review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (c.) The examiner must indicate whether the Veteran has ankylosis of the lumbar spine. If ankylosis is not diagnosed then the examiner must answer whether there is evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. (d.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the lower back disability and comment on the effect of these disabilities on any occupational functioning and activities of daily living. (e.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Next, Schedule a VA examination to ascertain the current severity of the Veteran's service-connected scar disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Specifically, the examiner must address the Veteran's lay statements that his scars are painful and tender. Ensure the examiner provides all information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 3. Finally, afford the Veteran a VA examination by a orthopedist. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state: (a) whether it is at least as likely as not (a 50 percent probability or greater) the Veteran's claimed neck disabilities are etiologically related to his active-duty service. The examiner is specifically directed to comment on whether the Veteran's neck condition is etiologically related to his in-service complaints of bilateral shoulder pain. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's neck condition is caused, aggravated by, or otherwise etiologically related to his service-connected lumbar spine disability. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran's, and his wife's, competent lay statements. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.