Citation Nr: 21069345 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-28 366A DATE: November 18, 2021 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 right knee disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a rating in excess of 10 percent prior to January 27, 2017, in excess of 20 percent from January 27, 2017, to March 8, 2020, and in excess of 40 percent on and after March 9, 2020, for lumbar spine degenerative disc disease and intervertebral disc syndrome with surgical decompression residuals and strain is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. Entitlement to specially adapted housing is remanded. REASONS FOR REMAND The Veteran had active service from June 1986 to January 1990. In February 2019, the Board of Veterans' Appeals (Board) denied service connection for a right hip disability, a left hip disability, and a right knee disability and entitlement to a special home adaptation grant and remanded the issues of service connection for hypertension; an increased rating for lumbar spine degenerative disc disease and intervertebral disc syndrome with surgical decompression residuals and strain; a TDIU; and entitlement to specially adapted housing. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court vacated those portions of the February 2019 Board decision which denied service connection for a right hip disability, a left hip disability, and a right knee disability and remanded the issues to the Board for action consistent with its decision. 1. Entitlement to service connection for both a right hip disability and a left hip disability is remanded. In its April 2021 Remand instructions, the Board requested that the Veteran be afforded a VA hip examination to determine the nature of any identified hip disability and its relationship to active service and/or the service connected disabilities. The examiner was directed to, if a diagnosis cannot be provided and the hip condition manifested in symptoms that cause functional impairment, consider such impairment as a "disability for the purpose of providing the requested opinion." The report of a June 2021 VA hip examination states that the Veteran exhibited right hip and left hip limitation of flexion to 100 degrees. The examiner stated the Veteran "does not have a current diagnosis associated with any claimed conditions." The examining nurse practitioner did not consider the reported limitation of right hip and left hip flexion as a "disability for the purpose of providing the requested opinion" and did not advance an opinion as to the relationship between such disability and either active service and/or the service connected disabilities. The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, further VA hip examination is needed. Clinical documentation dated after June 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for a right knee disability is remanded. In its April 2021 Remand instructions, the Board requested that the Veteran be afforded a VA knee examination to determine the nature of any identified right knee disability and its relationship to active service and/or the service connected disabilities. The examiner was directed to, if a diagnosis cannot be provided and the right knee condition manifests in symptoms that cause functional impairment, to consider such impairment as a "disability for the purpose of providing the requested opinion. The report of a June 2021 VA knee examination and a July 2021 addendum thereto state that the Veteran exhibited right knee limitation of flexion to 90 degrees. The examiner stated that "there is no right knee condition." The examining nurse practitioner did not consider reported limitation of right knee flexion as a "disability for the purpose of providing the requested opinion" and did not advance an opinion as to the relationship between such disability and either active service and/or the service connected disabilities. The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, further VA knee examination is needed. 3. Entitlement to service connection for hypertension is remanded. In its April 2021 Remand instructions, the Board requested that the Veteran be afforded a VA hypertension evaluation conducted by "a VA physician, or other appropriate medical professional, if a physician is not available and the examiner's qualifications are adequately identified, addressing whether the Veteran has a hypertension disability, manifest currently or for any identified period of time during the appeal, that; (a)is at least as likely as not related to active service; (b) is proximately due to a service-connected disability(ies) or symptoms or treatment/medications related thereto; (c) underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability(ies) or symptoms or treatment/medications related thereto." A June 2021 VA hypertension evaluation from a nurse practitioner concluded that "hypertension is less likely as not related to active service;" "rationale: no found hypertension during or proximate to active duty" "hypertension is less likely as not related to service-connected disability(ies) or symptoms or treatment/medications related thereto;" and "rationale: no found service connected disability that is medically known to cause hypertension." The record reflects that the June 2021 hypertension evaluation was conducted by a nurse practitioner rather than the requested physician. There is no indication in the record that a VA physician was unavailable to provide the requested hypertension evaluation. The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, further VA hypertension examination is needed. 4. Entitlement to a rating in excess of 10 percent prior to January 27, 2017, in excess of 20 percent from January 27, 2017, to March 8, 2020, and in excess of 40 percent on and after March 9, 2020, for lumbar spine degenerative disc disease and intervertebral disc syndrome with surgical decompression residuals and strain is remanded. The report of a June 2021 VA spine examination states that the Veteran complained of constant severe lumbar spine pain. On examination of the lumbar spine, the Veteran exhibited a range of motion of forward flexion to 30 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 10 degrees; pain with all ranges of motion; pain with weight bearing, nonweight bearing, active motion of the spine, and rest; and guarding resulting in abnormal gait or abnormal spinal contour. The examiner commented that the service connected lumbar spine impaired his occupational activities as "he has trouble getting dressed in A.M. for work due to his back (shoes and socks)." The nurse practitioner did not indicate the degree at which the Veteran experienced pain on motion of the lumbar spine. In light of that deficiency, the Board finds that the functional loss associated with the service-connected lumbar spine disability is unclear and the examination report is of limited probative value. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, further VA spine examination is needed. 5. Entitlement to a TDIU and specially adapted housing is remanded. Entitlement to a TDIU and specially adapted housing requires an accurate assessment of the impairment associated with all of the service-connected disabilities. As the claims for a TDIU and specially adapted housing are inextricably intertwined with other claims being remanded, the issues must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated any hip, right knee, and hypertension disabilities and the service connected lumbar spine disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records not of record, to include those pertaining to treatment after June 2020. 3. Schedule the Veteran for a VA hip examination conducted by a medical doctor to assist in determining the nature of any identified hip disability to include functional impairment and/or pain and any relationship to active service and/or a service connected disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all hip disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hip disability, to include functional impairment and/or pain, had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hip disability, to include functional impairment and/or pain, is due to or the result of the lumbar spine disability and the other service-connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified hip disability, to include functional impairment and/or pain, has been aggravated (increased in severity beyond the natural progression of the disorder) by the lumbar spine disability and the other service-connected disabilities. 4. Schedule the Veteran for a VA knee examination conducted by a medical doctor to assist in determining the nature of any identified right knee disability to include functional impairment and/or pain and any relationship to active service and/or a service connected disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all right knee disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified right knee disability, to include functional impairment and/or pain, had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified right knee disability, to include functional impairment and/or pain, is due to or the result of the lumbar spine disability and the other service-connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified right knee disability, to include functional impairment and/or pain, has been aggravated (increased in severity beyond the natural progression of the disorder) by the lumbar spine disability and the other service-connected disabilities. 5. Schedule the Veteran for a VA hypertension examination conducted by a medical doctor to assist in determining the nature of any hypertension disability and any relationship to active service and/or a service connected disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all hypertension disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hypertension had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hypertension is due to or the result of the lumbar spine disability and the other service-connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified hypertension has been aggravated (increased in severity beyond the natural progression of the disorder) by the lumbar spine disability and the other service-connected disabilities. 6. Schedule the Veteran for a VA spine examination conducted by a medical doctor to assist in determining the current nature and severity of the service connected lumbar spine disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of the lumbar spine for weight bearing and nonweight bearing. The examiner should indicate the degree of lumbar spine motion at which any observed pain begins. The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination. (b) Indicate to what extent the Veteran experiences functional loss of the cervical spine due to pain or any other symptoms during flare ups or with repeated use. (c) State whether or not there is any ankylosis of the spine or any segment of the spine. (d) Note any incapacitating episodes associated with the lumbar spine disability and the duration. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (e) Describe any identified right or left lower extremity neurologic disabilities caused by the service-connected lumbar spine disability, the nerves affected, and the level of impairment. (Continued on the next page) (f) Opine as to the impact of the service connected lumbar spine disability on the Veteran's vocational pursuits. (g) Opine whether the Veteran was unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran was felt capable of work, the examiner should state what type of work and what accommodations would have been necessary due to the service-connected disabilities. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. C. KING 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.