Citation Nr: 21073261 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 13-22 070A DATE: December 8, 2021 REMANDED Entitlement to an increased evaluation for chronic prostatitis, evaluated 20 percent disabling prior to October 27, 2011, 40 percent disabling from October 27, 2011 to July 1, 2021, and 60 percent disabling thereafter, is remanded. Entitlement to an increased evaluation for degenerative arthritis of the spine, evaluated 10 percent disabling prior to April 11, 2014, and 20 percent disabling thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty for training from August 1981 to September 1981, and from August 1985 to November 1985. He also served on active duty from January 2003 to October 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2013 rating decision, the RO increased the evaluation for chronic prostatitis to 40 percent, effective from October 27, 2011. In an August 2014 rating decision, the RO increased the evaluation for lumbar spine disability to 20 percent, effective from April 11, 2014. In July 2015, the Board remanded the issues for additional development. In April 2018, the Board denied increased ratings for his lumbar spine disability and chronic prostatitis. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the Court granted a joint motion for remand (JMR) filed by representatives for both parties, and vacated and remanded the April 2018 Board decision. In August 2019, the Board remanded the issues for compliance with the terms of the JMR. In an August 2021 rating decision, the RO increased the rating for chronic prostatitis to 60 percent effective July 1, 2021. While the Board regrets further delay, after a review of the evidence of record, the Board finds that further development is required for compliance with the terms of the JMR. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an increased evaluation for chronic prostatitis, evaluated 20 percent disabling prior to October 27, 2011, 40 percent disabling from October 27, 2011 to July 1, 2021, and 60 percent disabling thereafter, is remanded. 2. Entitlement to an increased evaluation for degenerative arthritis of the spine, evaluated 10 percent disabling prior to April 11, 2014, and 20 percent disabling thereafter, is remanded. The Board first notes that there has not been substantial compliance with the August 2019 Board remand directives regarding obtaining VA records. The parties agreed in the JMR that the Board erred in denying the Veteran's appeal in the April 2018 decision without the benefit of having all of the Veteran's VA treatment records available for review. Specifically, the JMR noted that records dated in February 2011, October 2013, November 2014, and November 2015 reflected that documents were scanned into the Vista Imaging System; despite these notations, those scanned records were not viewable within the Veteran's file. In the August 2019 Board remand, the Board requested these records, considered to be in VA's constructive possession, to be associated with the Veteran's file in a way that such are viewable by the RO and the Board. However, the claims file does not show those scanned records, and there is no indication that the RO had attempted to obtain those records. Upon remand, the RO should make attempts to obtain those records. Regarding the increased rating claim for chronic prostatitis, the JMR noted that the Board erred in relying on a June 2013 VA examination report when it denied an increased rating in the April 2018 decision. Specifically, the JMR noted that while the June 2013 VA examiner noted the Veteran did not experience urinary tract infections (UTIs), an August 2011 VA examination report and VA treatment records reflected that the Veteran was prescribed antibiotics for management of UTIs. The JMR also noted that the Board did not discuss VA treatment records that reflect that the Veteran received treatments for UTIs including at least two emergency room visits in May 2010 and February 2011. In August 2019, the Board remanded the claim for a new examination and for a medical opinion that reconciled the June 2013 VA examiner's statement that the Veteran did not experience urinary tract infections with the August 2011 VA examination report and VA treatment records reflecting the contrary, to include prescription medications for symptom management. The Veteran underwent a VA examination in July 2021. However, the July 2021 examination report did not discuss the conflicting medical information in the August 2011 and June 2013 VA examinations, and there was no explanation as to why such was not provided. Upon remand, an addendum opinion should be obtained that reconciles the June 2013 VA examiner's statement with the August 2011 VA examination report and VA treatment records reflecting the contrary. Regarding the increased rating claim for the lumbar disability, the JMR noted the Board erred in finding that the Veteran's VA spine examinations during the appeal period were adequate for adjudicative purposes. Specifically, it noted that the August 2011, June 2013, and April 2014 VA examinations did not specify whether the range of motion findings relating to the spine were tested in weight-bearing and nonweight-bearing positions as required by Correia v. McDonald, 28 Vet. App. 158, 166 (2016). In addition, the JMR indicated that the June 2013 examination did not quantify the Veteran's functional impairment during the flare-ups of low back symptoms as required by Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In August 2019, the Board remanded the claim for a VA examination that included findings for the limitation of motion during flare-ups of symptoms, currently and retrospectively. Of note, upon closer review, the Board observes a retrospective Sharp finding was only needed for the June 2013 exam under the JMR. The Veteran underwent a VA contract examination in July 2021. While the examination report shows current findings for the limitation of motion during flare-ups, it did not discuss the retrospective findings for the June 2013 exam. Similarly, the examiner provided current findings for the limitation of motion in weight-bearing and nonweight-bearing positions, but she did not do so for the prior exams conducted in August 2011, June 2013, and April 2014. The examiner did not explain why the requested retrospective findings were not provided. In light of the foregoing, for compliance with the JMR, an addendum opinion should be obtained. The matters are REMANDED for the following actions: 1. The RO must ensure that the following records scanned into the Vista Imaging System are associated with the Veteran's electronic file in a way that such are viewable by the RO and the Board: February 2011 and November 2015 radiology notes; a November 2014 record indicative of operative notes; an October 2013 non-VA care note. 2. Obtain an addendum opinion from the July 2021 examiner, or from an appropriate clinician if unavailable, concerning the Veteran's service-connected chronic prostatitis. The examiner is requested to provide an opinion that reconciles the June 2013 VA examiner's statement -that the Veteran did not experience urinary tract infections- with the August 2011 VA examination report and VA treatment records reflecting the contrary, to include prescription medications for symptom management. If the examiner finds that the June 2013 examiner erred in stating that the Veteran's did not experience urinary tract infections due to his chronic prostatitis that the Veteran, such should be noted. The examiner is asked to provide retrospective addendum discusses the frequency and severity of urinary tract infections related to chronic prostatitis between August 2011 and June 2013, to the extent possible. 3. Obtain an addendum opinion from the July 2021 examiner, or from an appropriate clinician if unavailable, concerning the retrospective findings in terms of limitation of motion during flare-ups and in weight-bearing and nonweight-bearing positions. The examiner must provide answers to the following: (a) To the extent feasible, provide findings for the limitation of motion (expressed in degrees) of the Veteran's low back during flare-ups of symptoms retrospectively. In doing so, please review the June 2013 VA examination report, to include the Veteran's report that pain led to an emergency room visit in the past 12 months. (b) To the extent feasible, provide findings for the limitation of motion (expressed in degrees) of the Veteran's low back in weight-bearing and nonweight-bearing positions retrospectively. In doing so, please review the prior VA examination reports, and based on the information therein, provide the requested findings for the following examinations: August 2011, June 2013, and April 2014. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.