Citation Nr: 21072787 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-35 318 DATE: December 6, 2021 REMANDED Entitlement to an initial compensable disability rating prior to August 20, 2021 for lumbosacral strain is remanded. Entitlement to a disability rating in excess of 10 percent from August 20, 2021 forward for lumbosacral strain is remanded. Entitlement to an initial disability rating in excess of 10 percent for cervical spine degenerative arthritis is remanded. Entitlement to an initial disability rating in excess of 20 percent for right shoulder impingement syndrome is remanded. Entitlement to service connection for right lower extremity sciatica is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 2008 to August 2015, to include two tours in Afghanistan. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in February 2020 for additional development. During the pendency of this appeal, an August 2021 rating decision granted an initial increased rating of 10 percent for the Veteran's service-connected lumbosacral strain, effective from August 20, 2021. The issues have been characterized to reflect the rating before and after August 20, 2021. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an initial compensable disability rating prior to August 20, 2021 for lumbosacral strain is remanded. 2. Entitlement to a disability rating in excess of 10 percent from August 20, 2021 forward for lumbosacral strain is remanded. The November 2017 and August 2021 VA examinations indicate the Veteran takes ibuprofen for his lumbosacral strain and is still receiving chiropractic treatment. The Board notes that chiropractor records past October 2016 have not been specifically sought by VA. Further, the examiners did not estimate what the Veteran's lost range of motion or other functional loss would be absent the ameliorative effects of his medication. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that "the Board must obtain medical information as to what [the Veteran's] lost range of motion and other functional loss would be absent the ameliorative effects of medication.... [to include] a retrospective medical opinion for the earlier part of the appeal."). The Board notes that lumbar spine degenerative arthritis was diagnosed at the August 2021 VA examination, but the examiner did not state whether the condition was a progression of the Veteran's service-connected lumbosacral strain. 3. Entitlement to an initial disability rating in excess of 10 percent for cervical spine degenerative arthritis is remanded. The November 2017 and August 2021 VA examinations indicate the Veteran takes ibuprofen and naproxen for his cervical spine degenerative arthritis, and is still receiving chiropractic treatment. The Board notes that chiropractor records past October 2016 have not been specifically sought by VA. Further, the examiners did not estimate what the Veteran's lost range of motion or other functional loss would be absent the ameliorative effects of his medication. See Sharp, 29 Vet. App. at 33. 4. Entitlement to an initial disability rating in excess of 20 percent for right shoulder impingement syndrome is remanded. The November 2017 and August 2021 VA examinations indicate the Veteran is still receiving chiropractic treatment. The Board notes that chiropractor records past October 2016 have not been specifically sought by VA. 5. Entitlement to service connection for right lower extremity sciatica is remanded. In August 2021, the VA examiner found that the Veteran's sciatica clearly and unmistakably preexisted service and that at the time of enlistment, it was "quiescent" and "asymptomatic." The examiner further found no evidence of sciatica symptoms or of aggravation during active duty. The Board notes that the Veteran's statements during VA examinations that he had sciatic symptoms prior to service, that it was asymptomatic when he enlisted, and that his symptoms returned again during service was the only evidence available to the VA examiner. As such, the examiner found the Veteran's statements reliable enough to conclude his sciatica clearly and unmistakably pre-existed service, but then found his statement not reliable regarding occurrence during active duty. The Board finds this contradictory and renders the examiner's August 2021 opinions inadequate. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for private treatment records, to include any outstanding chiropractic treatment records. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral strain. 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 should specifically consider whether the Veteran's treatments have any ameliorating effects on the symptoms or presentation. 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). In so doing, the examiner must 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). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine degenerative arthritis. 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 should specifically consider whether the Veteran's treatments have any ameliorating effects on the symptoms or presentation. 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). In so doing, the examiner must 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). 4. After obtaining any private treatment records, and any additionally indicated development, readjudicate the matter of entitlement to a disability rating in excess of 20 percent for right shoulder impingement syndrome. 5. Schedule the Veteran for a VA examination for his right lower extremity sciatica. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is right lower extremity sciatica at least as likely as not related to service, including a claimed injury while on active duty? Is right lower extremity sciatica at least as likely as not proximately due to service-connected lumbosacral strain? Is right lower extremity sciatica at least as likely as not aggravated by service-connected lumbosacral strain? Is it at least as likely as not that the right lower extremity sciatica (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with recurrence of the same symptomatology since service? Did right lower extremity sciatica clearly and unmistakably (undebatable) pre-exist the Veteran's service? If the examiner finds right lower extremity sciatica did clearly and unmistakably pre-exist service, was it clearly and unmistakably not aggravated by service? If the examiner finds that right lower extremity either did not clearly and unmistakably pre-exist service or was not clearly and unmistakably not aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including his service-connected lumbosacral strain. It is not sufficient to base an opinion on a mere lack of documentation in the service treatment records. Please provide a rationale for all opinion provided. Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.