Citation Nr: 21070988 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-22 342 DATE: November 29, 2021 ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected low back strain. 2. Entitlement to a disability rating in excess of 10 percent for service-connected right ankle disability. 3. Entitlement to a disability rating in excess of 10 percent for service-connected left ankle disability. REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected low back strain is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected right ankle disability is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from November 1977 to November 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, in a rating decision from February 2006, the Veteran was granted entitlement to service connection for a low back strain at 20 percent, and service connection for bilateral ankle disabilities at 10 percent each. The Veteran filed a claim for increased ratings for each of those disabilities, but a rating decision from February 2014 denied those claims. The Veteran filed a timely Notice of Disagreement (NOD) in February 2014, and he was issued a statement of the case in March 2017. The Veteran then filed a timely VA Form 9 in April 2017, in which he requested a Board hearing. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in August 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. Finally, the Board notes that during his hearing, the Veteran generally asserted that his service-connected disabilities render him unemployable, thus raising a claim for a total disability evaluation based on individual unemployability (TDIU). However, the Board observes the TDIU claim has been granted, effective from October 3, 2018, in conjunction with a separate claim for an increased rating for the Veteran's service-connected post-traumatic stress disorder. That claim is not currently on appeal. Further, the claims file does not indicate the Veteran has since expressed a desire to contest the effective date assigned therein as required pursuant to 38 C.F.R. § 20.1103, nor did he make such a claim during his hearing. Therefore, the issue is not on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (claims for increased evaluations and TDIU claims may be separately adjudicated). 1. Entitlement to a disability rating in excess of 20 percent for service-connected low back strain is remanded. The Veteran has claimed that his service-connected low back strain is worse than currently rated. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran was given a hearing before the undersigned in August 2021. During the hearing, the Veteran testified that his back disability had worsened since his last VA examination. The Veteran described difficulty with forward flexion, strain with getting out of bed, a reduced range of motion (ROM), and painful flare ups that limit his motion further. The Veteran testified that he cannot bend forward to touch his ankles, and that some days he has difficulty even touching his knees. The Veteran stated that the pain and weakness also cause "numbness and tingling feelings" in his legs. He testified that the pain in his back is about an eight out of ten, and that he has "some really bad days." The Veteran's Representative reiterated during the hearing that the Veteran believes his back disability has worsened since his most recent VA examination. During the hearing, the Veteran's wife also testified that the Veteran has reduced range of motion, and that she has to help him with chores around the house due to his mobility problems. The Board notes that the Veteran's Representative also indicated that there may be private treatment records that have not been associated with the Veteran's claims file. The Veteran is competent to report the symptoms he experiences, such as those associated with his back disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's spouse is also competent to report that which she observes. The Veteran's spouse is also competent to report that which she observes. The Veteran was given a VA examination in February 2019. The Veteran was seen in person, but it is unclear if the Veteran's claims file was reviewed. During the exam, the Veteran indicated that he experiences back pain that has "progressively gotten worse over the years." The Veteran also described flares ups of "more intense pain, spasms." The examiner confirmed that the Veteran does experience flare ups, which were severe and almost daily. On ROM testing, the Veteran exhibited forward flexion to 40 degrees, extension from 10 to 20 degrees, and left lateral flexion and rotation all to 15 degrees. Functional loss was noted during the exam, which included "pain and fear of increased pain and difficulty moving for the rest of the day." The examiner noted that the examination was not conducted during a flare up, and no estimation was given as to the Veteran's ROM during a flare up. In the remarks portion, the examiner wrote that it was not possible to determine the ROM "without resorting to mere speculation ... because there is no conceptual or empirical basis for making such a determination." They also wrote that there was "no persistent evidence of record ... that indicates a loss of function during these conditions." Later portions of the exam indicated symptoms of radiculopathy, including that the Veteran had "mild" intermittent pain and paresthesias in the lower extremities. The examiner stated that the Veteran had intervertebral disc syndrome (IVDS), but that he had no prescribed bed rest by a physician over the past twelve months. The Board finds that the February 2019 VA examination is inadequate for determining the current severity of the Veteran's back disability. A recent Court decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. While the February 2019 VA examiner provided information regarding the severity, frequency, duration and functional loss manifestations during a flare up, the examiner also stated that estimated ROM measurements could not be given without resort to mere speculation. They did not indicate that the inability to give an estimated ROM was based on a lack of knowledge among the medical community, rather than insufficient knowledge by the individual examiner. This is particularly important, as it is unclear whether or not the examiner reviewed the Veteran's claims file. Furthermore, the examiner later stated that there was no persistent evidence of record to indicate that these flare ups occurred. As such, the Board finds the February 2019 VA examination inadequate. See Sharp, Id. Regardless, the Veteran has testified that the severity of this service-connected back disability has worsened since the most recent VA examination. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected spine disability. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). 2. Entitlement to disability ratings in excess of 10 percent for service-connected right and left ankle disabilities are each remanded. The Veteran has also claimed that his service-connected bilateral ankle disabilities are each worse than currently rated. The Board incorporates its discussion from the sections above by reference. As noted above, the Veteran was given a Board hearing in August 2021. During the hearing, the Veteran testified before the undersigned that his ankle disabilities "are worse" since the most recent VA examination in October 2014. The Veteran testified that he experiences "stiffness and swelling" in his ankles, which leads to pain. He stated that the pain occurs "when I do try to walk," and that "the bottom of my feet hurt." The Veteran testified that he experiences pain with weight bearing and standing, and that he "has to walk awkwardly." The Veteran's spouse also testified that the Veteran experiences mobility issues, and that he occasionally needs a walker or cane to help him ambulate. The Veteran's Representative reiterated that the Veteran has described his bilateral ankle disabilities as "much worse" since the most recent VA examination. As noted above, the Veteran is competent to report the symptoms he experiences, such as those associated with his bilateral ankle disabilities. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's spouse is also competent to report that which she observes. The Board notes that the Veteran's most recent VA examination for his bilateral ankle disabilities was in October 2014, over seven years ago. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected bilateral ankle disabilities. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). Finally, the Board is reminded that the Veteran and his Representative indicated during the August 2021 hearing that there may be private treatment records relevant to the issues on appeal which have not yet been associated with the claims file. Thus, on remand, the RO is to make appropriate efforts to obtain any further private medical records identified and authorized for release by the Veteran, and then associate those records with the claims file. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. The RO is reminded that the Veteran testified in August 2021 of receiving private medical treatment and that the records have not yet been associated with the claims file. 2. Schedule the Veteran for a VA medical examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate physician to assess the current severity of his service-connected low back strain and bilateral ankle disabilities. Additional VA examinations should be scheduled as deemed necessary. The entire claims file, to include a copy of this remand, should be made available for the clinician(s) to review, and the reports should reflect that such review was accomplished. The clinician(s) should consider the lay statements and testimony of the Veteran. The examiner is asked to offer opinions as to the following: (a.) determine the current severity of the Veteran's service-connected low back strain and bilateral ankle disabilities. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. All appropriate clinical tests must be conducted, including, but not limited to, orthopedic and neurological tests associated with the Veteran's bilateral lower extremities. The examiner is reminded that the Veteran testified in August 2021 as to the severity and frequency of his flare ups, in addition to further symptoms of pain, limited mobility, and an inability to bend over. The Veteran has also testified as to symptoms of pain and numbness in his bilateral lower extremities. The examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joint(s) in question and any paired joint(s). See Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The examiner should detail range of motion measurements, to include the degree at which he experiences pain, any additional impact caused by motion such as weakness and fatigability, incoordination, or swelling. The examiner is to note a full and complete history of the Veteran's symptoms, to include symptoms associated with any flare-ups. Provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to ascertain information as to the frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.