Citation Nr: 21070006 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 14-23 738 DATE: November 22, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for service-connected lumbar strain (hereinafter 'back disability') is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected right lower extremity radiculopathy is remanded. Entitlement to service connection for a neck disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to April 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision which was issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided sworn testimony before the undersigned Veterans Law Judge at a June 2018 videoconference hearing. A copy of the hearing transcript has been associated with the Veteran's electronic claims file. In an October 2018 Board decision, the claims for entitlement to service connection for a neck disability and an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety were remanded, and entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain and a disability rating in excess of 10 percent for service-connected right lower extremity radiculopathy were also remanded. Subsequent to the 2018 Board remand development, in a June 2020 rating decision, the Veteran's claim for service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety was granted with an evaluation of 10 percent effective October 7, 2010 and an evaluation of 50 percent assigned from July 25, 2019. In addition, the Veteran submitted VA form 10182 in November 2020, disagreeing with the ratings for PTSD. He selected the Hearing Lane. As such, that claim is now in a separate appeal stream, and a hearing will be scheduled in due time. 1. Back disability and lower extremity radiculopathy The Veteran argues he should have a higher evaluation for his service-connected back disability and lower extremity radiculopathy. After review of the record, the Board finds that a remand is needed as the AOJ failed to provide the Veteran with adequate VA medical examinations to assess the current severity of his back disability. Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court in Correia held that 38 C.F.R. § 4.59 requires VA examinations of the musculoskeletal system include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and when possible, with range of motion measurements of the opposite undamaged joint. Additionally, Sharp directs that an examiner should address reports of flare-ups with information to evaluation the "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, they affect functional impairment." See 29 Vet. App. at 10-11. The Board notes that the examiner therefore should describe functional loss after repeated use over time and due to flare-ups should in terms of the degree of additional range-of-motion loss or explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. Furthermore, in situations where an examination is not conducted during a flare-up, a VA examiner should estimate functional loss based on the Veteran's descriptions of his/her additional loss of function during flare-ups, gleaned from his/her medical records, or discerned from other sources available to the examiner. Id. at 35-36. The May 2011 and July 2019 VA examinations do not provide range of motions measurements for passive motion, in weight-bearing and non-weight-bearing. Additionally, the 2019 examiner found that it was not possible to determine, without resorting to mere speculation, on the estimated loss of range of motion after repeated use over time and during a flare up because "there remains no basis to offer additional losses of function or motion when it comes to repeated use over time" and because the examiner stated the Veteran denied flare ups (which is contradictory to his medical records and sworn testimony). Further, this does not consider the Veteran's reports of having sharp pain and difficulty with walking, standing, bending, and squatting due to his back and does not consider the Sharp and Correia requirements. Additionally, the 2019 examiner only tested active range of motion but did not test passive range of motion or non-weight bearing; and again, failure to provide any estimated range of motion limitations with repeated use over time or during a flare up is not adequate, and there was no explanation provided for why Correia-compliant range-of-motion testing could not be performed. Further, the 2019 examiner did not ascertain the required information as to the severity, frequency, duration, characteristics, or functional loss regarding the Veteran's flare-ups by alternative means. Rather, the examiner stated there were no reported flare ups (which again contradicts the medical records and the Veteran's sworn testimony). The Board notes that this is in direct contradiction of Sharp, as one of the main purposes of Sharp is to estimate the additional loss of range of motion after repeated use over time, during passive testing, and due to flare-ups in terms of degrees, by alternative means if necessary, or adequately rationalize why this cannot be done without resorting to mere speculation. Therefore, as this additional change in range of motion with repetitive action and flare-ups is certainly pertinent and possibly beneficial to the Veteran's current claim, the Board finds that this information must be obtained prior to adjudication of the claim. Finally, the Board notes that the 2019 examiner failed to consider the Veteran's medical records, sworn testimony, and statements, which further renders the 2019 examination report inadequate. In addition to the above, the Board notes that the examiner marking that the Veteran does not have an abnormal gait is contradictory to his VA medical records and physical therapy records; and the examiner also indicated the Veteran does not use any assistive devices which is also clearly erroneous as the Veteran's VA medical records indicate he wears a back brace. As such, a remand for an adequate examination and medical opinion is warranted. As the radiculopathy claim is intertwined with the back claim on appeal, further consideration of that issue must be deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 2. Neck disability As for the claim for service connection for the neck disability, as noted in the 2018 remand, the Veteran's primary contention is that he injured his neck during service, or, in the alternative, it is aggravated by his service-connected back disability. In relevant part, the Board remanded the matter to obtain a new VA examination and medical opinion to address both direct and secondary theories of entitlement raised, especially as it concerned secondary aggravation. Upon remand, a VA examination was conducted in July 2019. Unfortunately, the resulting opinion failed to include a sufficiently detailed or adequate rationale. Instead, the VA examiner simply noted that the neck disability was not due to service, but the rationale was that "I cannot say if the current condition is related to the...neck disability during service, as during service, condition was acute only." The examiner further opined that the neck disability was not diagnosed for 21 years since separation of service, and that the condition is likely due to the Veteran's age and his history of being a smoker. As for the requested opinion regarding causation or aggravation, the examiner did not address whether the back disability caused any degree of aggravation to the neck disability, but rather repeated the rationale he used for direct service connection. First, the direct service connection opinion is insufficient for the purpose of making a decision on the claim as the examiner did not provide adequate supporting data for his opinion. Specifically, the rationale that the Veteran's neck disability being due to the fact the Veteran has a history of being a smoker is irrational baseless the Veteran's medical records clearly indicate that he has not smoked since 1989 which is prior to the initial injury in service. Further, the VA examiner failed to expressly opine, with a clear rationale, whether any in-service complaints, injuries and/or treatment for a neck disability are etiologically related to his current neck disability. The Board notes that the fact the Veteran's condition was normal at discharge does not preclude service connection being granted for a post-service condition if it is, in fact, related to the service injury. Additionally, the examiner's rationale that the record is silent for 21 years since service is inaccurate. First, the Veteran applied for a neck disability in 2004; in 2006, an MRI showed issues at C5 -6 and C6-7; and in 2009, his private records show reports of chronic neck pain and that he was treated by private providers and a 2009 MRI indicated mild spondylosis at C5-6 and C6-7 with mild cord flattening at C6-7. Therefore, the Board finds that the 2019 opinion is inadequate and is too speculative; as such, the opinion is of little probative value. Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (without supporting clinical data or other rationale, [the expert's] opinion simply is too speculative to provide the degree of certainty for medical nexus evidence.). Further, the Board had specifically stated in the remand directions that the examiner must address the November 1997 in-service cervical spine radiograph documenting the presence of a "very mild posterior osteophyte formation at C6/7," as well as the Veteran's credible testimony that he did not begin experiencing neck pain until 2002 or 2003. However, the examiner failed to provide an adequate discussion of either, nor was there any consideration of the July 2018 note from Dr. M. who stated that a "very mild posterior osteophyte formation at C6/7" noted on a November 1997 in-service radiograph of the cervical spine "probably represents the initial onset" of the Veteran's current disability. As such, while the Board sincerely regrets the additional delay, another remand is necessary to afford the Veteran due process of law. The matter is again remanded to obtain an adequate opinion and to ensure compliance with the Board's previous remand directives. Stegall, 11 Vet. App. at 271; Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA medical records from June 2020 to the present and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected back disability and associated lower extremity radiculopathy. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination, and the examiner should note review of the record in the examination report. 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. The examiner must also attempt to elicit information, based on all the evidence of record, regarding the severity, frequency, and duration of any flare-ups. In so doing, the examiner must: test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 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). To the extent possible, the examiner should identify any symptoms and functional impairments due to the low back disability. 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 should specifically identify all neurological manifestations related to the low back, noting any nerve involved and the extent of that involvement. 3. Please review the examination report to ensure that it actually complies with the remand directives stated above. Specifically, if range-of-motion measurements are not provided by the examiner in compliance with Correia, the examination must be returned to obtain complete medical findings. 4. Forward the claims file to the 2019 VA examiner, or another examiner if the 2019 examiner is not available, to obtain an addendum opinion regarding the Veteran's neck disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinions. Examination of the Veteran is not required, unless the VA examiner determines an in-person examination is necessary to provide the below-requested opinion. Following a complete review of the electronic claims file, the examiner must provide an opinion as to whether: it is at least as likely as not (50 percent or greater probability) that the Veteran's neck disability is related to an in-service injury, event, or disease? it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disorder was caused by his service-connected back disability? it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disorder was aggravated by his service-connected back disability? The examiner should specifically cite to any evidence that supports this opinion. The examiner is advised that a "permanent" worsening or increase in severity of any currently diagnosed cervical spine disorder is NOT required to demonstrate "aggravation." Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. As part of the rationale, the examiner must specifically address and discuss: The 1986 report of head injury from playing volleyball; The 1994 incident when the Veteran fell during PT; In an undated service medical record, it was noted the Veteran complained of sharp pain in the upper back with muscle spasms starting in the back of neck to mid back and he was diagnosed with muscle spasms in neck; The 1997 X-ray finding of very mild posterior osteophyte formation at C6/7; The 2006 MRI findings of early spondylotic changes in low cervical spine; The 2009 private medical records indicating that he reports chronic neck pain, treated by private providers and sees a chiropractor; The 2009 MRI findings of mild spondylosis at C5-6 and C6-7; with mild cord flattening at C6-7 His ongoing treatment with private medical providers with physical therapy for his back and neck pain; The July 2018 treatment note from Dr. M. who stated that a "very mild posterior osteophyte formation at C6/7" noted on a November 1997 in-service radiograph of the cervical spine "probably represents the initial onset" of the Veteran's current disability; and The Veteran's credible testimony that he began experiencing neck pain around 2002 or 2003. Rationale must be provided for opinions proffered. If the examiner determines a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, Associate 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.