Citation Nr: 21075826 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-19 246 DATE: December 21, 2021 REMANDED Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a bilateral shoulder disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to an initial compensable rating for residuals of a compression fracture of the thoracic spine, T-II, is remanded. REASONS FOR REMAND The Veteran had active service from July 1964 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran did not indicate a desire to appeal the issue of service connection for a lumbar spine disability on his August 2015 Notice of Disagreement. However, in March 2017, the Agency of Original Jurisdiction (AOJ) issued a statement of the case and treated said issue as being on appeal. In light of this procedural posture, and because the Veteran has been given the impression that the claim for service connection for a lumbar spine disability is still on appeal, the Board will adjudicate that claim. Percy v. Shinseki, 23 Vet. App. 37 (2009). In August 2020, the Veteran had a hearing before the undersigned Veterans Law Judge. Regrettably, a transcript of the hearing was unable to be obtained; the Veteran was informed of this fact and elected to have another hearing. Said hearing was scheduled for August 2021, however, the Veteran requested that the hearing be rescheduled. He was notified of the virtual hearing to be held in October 2021, but he failed to appear. VA has received no further communication from the Veteran regarding his missed hearing; therefore, his hearing request is deemed withdrawn. All Claims Here, the Board finds a remand is necessary to remedy a due process error and to afford the Veteran adequate VA examinations and/or opinions for his claimed disorders. At the outset, the Board notes that VA treatment records, as well as VA examinations and opinions (pertinent to his spine claims) were obtained in January 2019, after which the AOJ failed to issue a Supplemental Statement of the Case. Although action by Congress allows the Board to review new evidence submitted by the Veteran without waiver of AOJ review for cases in which the substantive appeal was filed on or after February 2, 2013 (see Camp Lejeune Families Act of 2012, Public Law 112-154, codified at 38 U.S.C. § 7105 (a) (2012)), this waiver does not apply to evidence obtained by VA, to include VA treatment reports and examinations. Accordingly, although a remand is necessary for other reasons, it will also serve to alleviate any due process concerns with respect to initial AOJ review of the newly obtained evidence. Increased Rating for Thoracic Spine The Veteran underwent a VA spine examination in January 2019. Such examination is inadequate, as it failed to comply with 38 C.F.R. § 4.59, Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In particular, the examiner failed to evaluate range of motion for pain on both active and passive motion and in weight bearing and nonweight-bearing and did not provide an adequate rationale as to why he could not estimate the Veteran's additional loss of range of motion after repeated use. Accordingly, a new examination is warranted. Service Connection Claims The Veteran contends his musculoskeletal disorders were incurred in service, due to his multiple jumps as a paratrooper. Also, specific to his lumbar spine disorder, he has also contended that such is due to his in-service back injury (the basis of which he was granted service connection for a thoracic spine disorder) or that such is secondary to his service-connected thoracic spine disorder. He has also contended that his cervical and lumbar spine disorders are due to a gunshot wound in service. While multiple opinions have been obtained, the Board will address those areas only where adequate opinions are lacking. In this regard, in May 2014, a VA opinion was obtained regarding whether the Veteran's bilateral shoulder and knee disorders, and cervical and lumbar spine disorders were due to his in-service jumps. The examiner opined negatively, impermissibly relying on a lack of medical records substantiating the Veteran's symptoms, in and after service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, this opinion is inadequate. Regarding the Veteran's lumbar spine disorder, a VA opinion regarding secondary service connection was obtained in August 2014, wherein the examiner found that the Veteran's lumbar spine disorder was not permanently aggravated by his service-connected thoracic spine disorder. However, for secondary service connection claims, the standard for aggravation is any increase in disability, not permanent worsening. See Ward v. Wilkie, 31 Vet. App. 233 (2019). As this portion of the opinion (as it pertains to aggravation) used the wrong legal standard, it is inadequate. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination with an appropriate medical professional to determine the current severity of his service-connected residuals of a compression fracture of the thoracic spine, T-II. The electronic claims file, including a copy of this remand, must be made available to the examiner for review prior to the examination. Any indicated evaluations, studies, and tests should be conducted. In addition, the examiner should address the following: a) The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and lack of coordination present. b) The examiner should state whether the examination is taking place during a flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the impairment associated with flare-up episodes or after repetitive use over time, to include frequency, duration, characteristics, precipitating and alleviating factors, severity and/or the extent of functional limitations. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited range of motion caused by functional loss during a flare-up or after repeated use over time. If rendering this opinion is not possible, the clinician must provide an adequate explanation as to why. c) Range of motion testing must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges, if possible, obtain range of motion of the opposite undamaged joint. If such are not applicable, the examiner should state such along with an explanation. d) The examiner should also comment on any functional impairment caused by the Veteran's service-connected residuals of a compression fracture of the thoracic spine, T-II. A rationale for any opinion offered must be provided. 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's bilateral shoulder and knee disorder, and his cervical and lumbar spine disorders. The claims file must be reviewed, and such should be noted in the opinion. An additional VA examination may be provided if deemed appropriate. A. The examiner must opine whether the claimed disorders are at least as likely as not related to performing multiple jumps as a paratrooper in service. B. Specific to the Veteran's lumbar spine disorder, the examiner must additionally opine whether it is at least as likely as not aggravated (any increase in disability) by his service-connected residuals of a compression fracture of the thoracic spine, T-II. The examiner is advised that the Veteran is competent to report his symptoms and history, and any such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. The absence of clinical evidence of treatment for the claimed disorders in the Veteran's service treatment records or for years after service cannot, standing alone, serve as the basis for a negative opinion. A rationale for any opinion offered must be provided. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.