Citation Nr: 21072148 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-31 729A DATE: December 2, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine is remanded. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 20 percent for left shoulder strain is remanded. Entitlement to a rating in excess of 20 percent for right shoulder strain is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2007 to February 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012rating decision of the Department of Veterans Affairs (VA). In April 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans' Law Judge. A transcript of that hearing has been associated with the record. In October 2018, the case came before the Board. The Board denied entitlement to service connection for residuals of dental care. In addition, the Board remanded the Veteran's claims for entitlement to increased ratings for GERD, a lumbar spine disability, a bilateral shoulder disability, and a bilateral knee disability in order to obtain additional examinations. In November 2019, the Regional Office (RO) issued a rating decision that increased the Veteran's left and right shoulder disabilities to 20 percent disabling effective from February 29, 2012. In April 2020, the case came before the Board. The Board denied entitlement to increased ratings for a lumbar spine disability, bilateral knee disability, bilateral shoulder disability, and GERD. Following the Board's decision, the Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In February 2021, the Secretary of VA and a representative of the Veteran filed a Joint Motion for Remand (JMR).The parties agreed that the Board erred when it did not provide an adequate reasons and bases when it denied the Veteran's claims. Specifically, the parties agreed that the Board erred when it did not adequately address the Veteran's lay statements regarding functional loss his disabilities exhibit. Moreover, the parties agreed that the Board erred when it did not adequately address the Veteran's reports regarding shoulder flareups. Furthermore, the parties agreed that the Board did not adequately address the Veteran's reports of left knee instability. Lastly, the parties agreed that the Board did not adequately address what "considerable impairment of his health" meant when the Board addressed the Veteran's GERD. In June 2021, the case returned to the Board. In turn, the Board remanded the Veteran's claims for additional examinations in order to address the terms of the JMR. 1. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine is remanded. In the February 2021 JMR, the parties agreed that the Board erred when it relied on the October 2019 VA examiner's findings. Specifically, the parties agreed that the examiner's findings pertaining to active and passive range of motion were inconsistent and did not adequately evaluate the Veteran's functional loss. In addition, the parties agreed that the Board did not adequately evaluate the Veteran's lay statements when he described the lost range of motion in his lumbar spine. In June 2021, the Board remanded this issue and asked the examiner to fully address the Veteran's lay statements regarding functional loss. The Board also requested the examiner to address the Veteran's reports that his back hurts when lying down to sleep and that he is unable to sleep in many positions because of the pain. Lastly, the Board requested the examiner to address the Veteran's statement that he is in constant pain and cannot do anything for too long because his back starts hurting. In August 2021, the Veteran attended a VA examination for this issue. The VA examination report does not show any evidence that the examiner provided an analysis of the Veteran's lay statements that was specifically requested by the Board. Accordingly, the Board finds this examination report to be inadequate and that there has not been substantial compliance with the remand orders; therefore, the matter must be remanded once again for compliance with the previous order/completion of the actions sought. Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied the Board itself errs in failing to ensure compliance). 2. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. In the February 2021 JMR, the parties agreed that the Board erred when it did not adequately address whether the Veteran's symptoms were productive of considerable impairment of his health. In June 2021, the Board remanded this issue and asked the examiner fully to provide a medical opinion that addressed whether the Veteran's symptoms were productive of a considerable impairment of health. In August 2021, the Veteran attended a VA examination for this issue. The VA examination report does not show any evidence that the examiner provided a detailed analysis as to whether the Veteran's symptoms were productive of a considerable impairment of health. Accordingly, the Board finds this examination report to be inadequate and that there has not been substantial compliance with the remand order; therefore, the matter must be remanded once again for compliance with the previous order/completion of the actions sought. See Stegall; supra. 3. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. 4. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. In the February 2021 JMR, the parties agreed that the Board erred when it did not adequately address the Veteran's lay statements regarding functional loss in his left and right knee. In June 2021, the Board requested the VA examiner to provide a medical opinion regarding the functional loss as described by the Veteran. The Board specifically, requested that the examiner should address the Veteran's reports of increased knee pain with stairs and prolonged walking. The Board also asked the examiner to address the Veteran's reports that he has to take frequent breaks and ice his knees when mowing the lawn. Lastly, the Board requested the examiner to address the Veteran's reports that his knee pain precludes him from exercising, sitting, standing, walking, and driving for any length of time. In August 2021, the Veteran attended a VA examination for this issue. The VA examination report did address the Veteran's instability; however, the VA examination report does not show any evidence that the examiner provided a detailed analysis regarding the Veteran's lay statements regarding functional loss and lost range or motion when performing certain activities. Accordingly, the Board finds this examination report to be inadequate and that there has not been substantial compliance with the remand orders; therefore, the matter must be remanded once again for compliance with the previous order/completion of the actions sought. Stegall; supra. 5. Entitlement to a rating in excess of 20 percent for left shoulder strain is remanded. 6. Entitlement to a rating in excess of 20 percent for right shoulder strain is remanded. In the February 2021 JMR, the parties agreed that the Board erred when it did not reconcile the conflicting findings that addressed the Veteran's reports of flareups that were recorded in the examinations that the Veteran attended in 2012 and 2019. The parties also agreed that the Board erred when it did not adequately address the Veteran's report that his shoulder feels "stuck." In June 2021, the Board requested the VA examiner to provide a medical opinion regarding the functional loss as described by the Veteran. The Board specifically, requested that the examiner should address the Veteran's reports of lost range of motion during flareups throughout the course of the appeal. The Board also requested the examiner to address the Veteran's reports that his shoulder feels "stuck" and that he is unable to sleep on either shoulder because he feels pain. In August 2021, the Veteran attended a VA examination for this issue. The VA examination report does not show any evidence that the examiner provided a detailed analysis regarding the Veteran's lay statements regarding functional loss and lost range or motion. Moreover, the examination report did not address the Veteran's lost range of motion during a flareup. Accordingly, the Board finds this examination report to be inadequate and that there has not been substantial compliance with the remand orders; therefore, the matter must be remanded once again for compliance with the previous order/completion of the actions sought. See Stegall; supra. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from October 12, 2021, to the present. 2. Schedule the Veteran for a VA examination to determine the current severity of his lumbar spine. The examiner's opinion should fully address the Veteran's lay statements regarding functional loss. The examiner's opinion should address the Veteran's reports that his back hurts when lying down to sleep and that he is unable to sleep in many positions because of the pain. The examiner's opinion should also address the Veteran's statement that he is in constant pain and cannot do anything for too long because his back starts hurting. 3. Schedule the Veteran for a VA examination to determine the current severity of his right and left knee disability. The examiner's opinion should specifically address the Veteran's claim of increased knee pain with stairs and prolonged walking. The examiner's opinion should specifically consider and address the Veteran's statement that he has to take frequent breaks and ice his knees when mowing the lawn. The examiner's opinion should specifically address the Veteran's claim that his knee pain precludes him from exercising, sitting, standing, walking, and driving for any length of time. 4. Schedule the Veteran for a VA examination to determine the current severity of his GERD. The examiner's opinion should specifically address whether the Veteran's symptoms manifested in considerable impairment of his health. 5. Schedule the Veteran for a VA examination to determine the severity of the Veteran's left and right shoulder. The examiner's opinion should specifically address the Veteran's lost range of motion during flareups throughout the course of the appeal. The examiner's opinion should specifically address the Veteran's statement that his shoulder feels "stuck." The examiner should also address the Veteran's report that he is unable to sleep on either shoulder because he feels pain In providing all of the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.