Citation Nr: 21076624 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-07 953 DATE: December 27, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for recurrent migraine headaches is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine disability is remanded. Entitlement to a disability rating in excess of 10 percent for radiculopathy, right lower extremity, is remanded. Entitlement to a disability rating in excess of 10 percent for radiculopathy, left lower extremity, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1984 to August 1991. Further, the record indicates she had additional service in the Reserves. These matters came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2013 rating decision, service connection was denied for disabilities of the hips and knees. In a January 2016 rating decision, service connection was granted for degenerative disc disease, lumbar spine, status post-surgery and a temporary total rating was granted from October 20, 2011 and a 10 percent disability rating was granted effective February 1, 2012. Service connection was also established for radiculopathy of the left lower extremity (20% 10/20/2011) and right lower extremity (10% 10/20/2011). A TDIU was denied. In a July 2016 rating decision, service connection for a cervical spine disability was denied. In an April 2017 rating decision, a 10 percent disability rating was assigned to radiculopathy, left lower extremity, effective February 9, 2017. Service connection for migraine headaches was denied. In May 2019, the Board remanded the service connection issues, the lumbar spine issue, and the TDIU issue. The Board finds that the radiculopathy ratings are part and parcel of the lumbar spine disability issue, thus the Board will address whether increased ratings are warranted. Cervical spine The Veteran asserts that her cervical spine disability is due to or aggravated by her service-connected lumbar spine disability. Specifically, she asserts that her cervical spine disability is the result of hypermobility joint syndrome and that she has the same condition in her spine. A March 2016 private medical statement reflects that during her last office visit she was found to have paravertebral muscle spasms throughout her cervical thoracic and lumbar spine, left sided patellofemoral syndrome, bilateral sacroiliac pain and a tender left piriformis. The examiner stated that these findings are in line with prior office visits and complaints. These are not new findings, and they can all be caused or exacerbated by wearing heavy gear such as she wore throughout her deployments. The examiner explained that when we walk gravitational forces are translated down through our spine into the pelvis and down to the lower extremities. As we age, we all developed degenerative changes in our spine and joints. Obviously, wearing heavy gear increases the gravitational forces and can accelerate the degenerative process, especially in a female. The examiner opined that this is exactly what has happened in the Veteran's case and it is more likely than not the condition is service-connected. 04/20/2016 Medical Treatment Record-Non-Government Facility at 1. A January 2019 private medical statement reflects that there "are multiple other clinical conditions diagnosed that are more likely than not secondary to or aggravated by the primary back condition." 01/24/2019 Medical Treatment Record-Non-Government Facility. It is acknowledged that such statement does not specifically refer to the cervical spine. In May 2019, this issue was remanded for an examination and etiological opinions. In November 2019, the Veteran underwent a C&P examination wherein the examiner diagnosed degenerative arthritis of the spine and displacement cervical spine intervertebral disc. The examiner opined that the Veteran's cervical spine disability was due to an employment injury circa 2012. The examiner did not address the lay assertions of the Veteran and the opinion of the March 2016 examiner that wearing heavy gear during service caused her condition. The examiner also opined that a low back condition cannot cause an acute on the job injury and arthritis of the cervical spine but did not address aggravation. In July 2020 correspondence from the Veteran, she cited to treatise material pertaining to heavy gear she wore during service, including a helmet. She reported that as an aviation mechanic she was on flight status and regularly wore a flight helmet. The examiner also referenced chiropractic records dated in 2006, 2010, and 2012 pertaining to treatment of cervical segmental dysfunction. 07/14/2020 Correspondence. The Board finds that further opinions must be sought from an orthopedic physician regarding the etiology of her cervical spine disability. Migraine headaches The Veteran asserts that her migraine headaches are due to her cervical spine disability. Thus, the issue is inextricably intertwined with the cervical spine issue being remanded. The Veteran also asserts that her headaches are due to service-connected chronic fatigue syndrome and fibromyalgia. 07/14/2020 Correspondence. Opinions must be sought that address these theories of entitlement. Bilateral hips and knees As detailed hereinabove, the March 2016 examiner opined that the Veteran has left sided patellofemoral syndrome, bilateral sacroiliac pain and a tender left piriformis due to carrying heavy gear during service. The Veteran's representative has also suggested that her service-connected lumbar spine, bilateral bunions (separate 10% ratings 03/14/2018), and bilateral plantar fasciitis (30% 03/14/2018) had caused altered gait which could result in the claimed hip and knee disabilities. 03/28/2019 Appellate Brief. In May 2019, these issues were remanded to afford the Veteran examinations and to obtain opinions. In November 2019, the Veteran underwent a C&P hips examination which reflects diagnoses of bilateral hip leg length discrepancy. There were objective findings of limitation of motion of both hips, but no specific diagnosis was rendered based on such findings. In November 2019, the Veteran underwent a C&P knee examination which reflects diagnoses of bilateral chondromalacia patellae and right mild degenerative joint disease proximal patella. The examiner opined that her current hip pain is leg discrepancy and proffered a negative direct etiological opinion. The examiner opined that the Veteran's low back condition would not cause or aggravate his hips but did not address the effect of her bunions and plantar fasciitis. The examiner opined that her left knee disability was not due to service and her low back condition cannot cause bilateral chondromalacia patellae and degenerative joint disease of the right knee. The examiner did not address aggravation, and did not address the effect of his bunions and plantar fasciitis. The examiner did not provide an opinion regarding the right knee because an opinion was not requested. The examiner opined that there is no chronic right knee condition due to her military service. In July 2020 correspondence, the Veteran cited to treatise materials regarding musculoskeletal injuries in military women and provided lay assertions with regard to her symptomatology associated with the hips and knees. 07/14/2020 Correspondence. It is clear that the examination and opinion reports are incomplete and insufficient as to the nature and etiology of the Veteran's claimed bilateral hip and knee disabilities. Further opinions are necessary. Lumbar spine and associated bilateral radiculopathy In November 2019, the Veteran underwent an examination to assess the severity of her lumbar spine disability. Due to the Veteran's stated current pain and the possibility of increased pain during a flare, the Veteran reported avoiding repeated movements which could result in increased pain. These avoided painful movements could inhibit functionality over a period of time. Also, the Veteran tries to avoid all conditions and activities which could end up causing a flare. With regard to functional impairment, the Veteran reported that lifting heavy items can cause back pain. The Veteran reported it is difficult to bend or twist without proper body mechanics or develop back pain. The Veteran reported sitting down for extended periods the back can become stiff and painful. The Veteran reported standing can cause back pain. The Veteran tries to avoid painful movements which can flare the back condition. The examiner, however, was unable to offer additional losses of function or motion reasured in degrees due to flare-ups or functional loss. The examiner, however, did not indicate that the speculation was due to lack of knowledge within the medical community. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Also, while the examiner noted pain with passive range of motion, examiner did not distinguish between active and passive motion. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Board finds that the Veteran should be afforded an examination with an orthopedic physician to assess the severity of her lumbar spine disability and associated radiculopathy. Entitlement to a TDIU The evidence of record reflects that the Veteran was medically retired as a Special Agent with the United States Army Criminal Investigation Command and last worked on June 2, 2014. The Veteran reports that her disabilities affected her full-time employment as of January 18, 2012, and she became too disabled to work on April 12, 2013. Service connection is in effect for chronic fatigue syndrome (60% 09/21/2016); unspecified depressive disorder with anxious distress (50% 03/01/2016); fibromyalgia (40% 09/07/2018); irritable bowel syndrome (30% 01/11/2017); bilateral plantar fasciitis (30% 03/14/2018); degenerative disc disease, lumbar spine (10% 02/01/2012); radiculopathy, right lower extremity (10% 10/20/2011); radiculopathy, left lower extremity (20% 10/20/2011; 10% 02/09/2017); 10% 02/09/2017); tinnitus (10% 09/21/2016); right foot bunion (10% 03/14/2018); left foot bunion (10% 03/14/2018); and, allergic rhinitis (0% 12/24/2017). Her combined rating is 40% from February 1, 2012; 70% from March 1, 2016; 90% from September 21, 2016; and 100% from March 14, 2018. Thus, for the period from February 1, 2012 to February 29, 2016 her disabilities do not meet the schedular criteria for a TDIU, and from March 1, 2016 her disabilities do meet the schedular criteria for a TDIU. While a TDIU is inextricably intertwined with the service connection issues in appellate status, there is no indication that the TDIU issue has been developed in light of her current service-connected disabilities and the combined effect of her disabilities on her ability to maintain substantially gainful employment. The March 2019 Board Remand instructed that the lumbar spine examination should address the effect on her employment, and in the aggregate with the other service-connected disabilities. The November 2019 C&P lumbar spine examiner discussed the functional effects of her lumbar spine in an occupational setting; however, there has been no development with regard to her functional limitations associated with her other service-connected disabilities. Thus, Remand is necessary for the Veteran to undergo a vocational assessment to evaluate the impact of her service-connected disabilities on her ability to function in an occupational setting. Also, consideration must be given as to whether the TDIU issue for the period prior to March 1, 2016 should be submitted to the Director, Compensation Service, for extraschedular consideration per 38 C.F.R. § 4.16(b). The matters are REMANDED for the following actions: 1. Associate updated VA treatment records for the period from September 1, 2020. 2. With regard to the claimed cervical spine disability, request that an orthopedic physician review the claims folder and respond to the following: a) Is a cervical spine disability at least as likely as not due to service, to include carrying heavy gear and wearing a helmet during service? b) Is a cervical spine disability at least as likely as not caused by a service-connected disability, which includes degenerative disc disease of the lumbar spine? c) If not, has a cervical spine disability at least as likely as not been aggravated (made worse) by a service-connected disability, which includes degenerative disc disease of the lumbar spine? If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation. The examiner is advised that the Veteran is competent to report her symptoms and history, and that her reports must be considered in formulating the requested opinions. In formulating the opinion, the examiner must provide an appropriate rationale, to include consideration and discussion of the medical evidence and lay assertions of the Veteran. If any requested opinion cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. An examination should be scheduled if deemed necessary by the examiner. 3. Schedule the Veteran for an orthopedic examination with a physician with appropriate expertise to assess the nature and etiology of her claimed left and right hip disabilities. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should respond to the following: a) Please identify all disabilities associated with the left and right hips. Consideration should be given to the diagnoses of record. b) Is a disability of the left hip at least as likely as not due to service, to include carrying heavy gear? c) Is a disability of the right hip at least as likely as not due to service, to include carrying heavy gear? d) Is a disability of the left hip at least as likely as not caused by a service-connected disability, which includes degenerative disc disease of the lumbar spine, bilateral plantar fasciitis, and bilateral bunions? e) If not, has a left hip disability at least as likely as not been aggravated (made worse) by a service-connected disability, which includes degenerative disc disease of the lumbar spine, bilateral plantar fasciitis, and bilateral bunions? If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation, if possible. f) Is a disability of the right hip at least as likely as not caused by a service-connected disability, which includes degenerative disc disease of the lumbar spine, bilateral plantar fasciitis, and bilateral bunions? g) If not, has a right hip disability at least as likely as not been aggravated (made worse) by a service-connected disability, which includes degenerative disc disease of the lumbar spine, bilateral plantar fasciitis, and bilateral bunions? If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation, if possible. The examiner is advised that the Veteran is competent to report her symptoms and history, and that her reports must be considered in formulating the requested opinions. In formulating the opinion, the examiner must provide an appropriate rationale, to include consideration and discussion of the medical evidence and lay assertions of the Veteran. If any requested opinion cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. 4. Schedule the Veteran for an orthopedic examination with a physician with appropriate expertise to assess the nature and etiology of her claimed left and right knee disabilities. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should respond to the following: a) Please identify all disabilities associated with the left and right knees. Consideration should be given to the diagnoses of record. b) Is a disability of the left knee at least as likely as not due to service, to include carrying heavy gear? c) Is a disability of the right knee at least as likely as not due to service, to include carrying heavy gear? d) Is a disability of the left knee at least as likely as not caused by a service-connected disability, which includes degenerative disc disease of the lumbar spine, bilateral plantar fasciitis, and bilateral bunions? e) If not, has a left knee disability at least as likely as not been aggravated (made worse) by a service-connected disability, which includes degenerative disc disease of the lumbar spine, bilateral plantar fasciitis, and bilateral bunions? If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation, if possible. f) Is a disability of the right knee at least as likely as not caused by a service-connected disability, which includes degenerative disc disease of the lumbar spine, bilateral plantar fasciitis, and bilateral bunions? g) If not, has a right knee disability at least as likely as not been aggravated (made worse) by a service-connected disability, which includes degenerative disc disease of the lumbar spine, bilateral plantar fasciitis, and bilateral bunions? If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation, if possible. The examiner is advised that the Veteran is competent to report her symptoms and history, and that her reports must be considered in formulating the requested opinions. In formulating the opinion, the examiner must provide an appropriate rationale, to include consideration and discussion of the medical evidence and lay assertions of the Veteran. If any requested opinion cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. 5. With regard to the claimed migraine headache disability, request that a physician with appropriate expertise review the claims folder and respond to the following: a) Is a migraine headache disability at least as likely as not caused by a service-connected disability, which includes degenerative disc disease of the lumbar spine, chronic fatigue syndrome, and fibromyalgia? b) If not, has a migraine headache disability at least as likely as not been aggravated (made worse) by a service-connected disability, which includes degenerative disc disease of the lumbar spine, chronic fatigue syndrome, and fibromyalgia? If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation, if possible. The examiner is advised that the Veteran is competent to report her symptoms and history, and that her reports must be considered in formulating the requested opinions. In formulating the opinion, the examiner must provide an appropriate rationale, to include consideration and discussion of the medical evidence and lay assertions of the Veteran. If any requested opinion cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. An examination should be scheduled if deemed necessary by the examiner. 6. Schedule the Veteran for an orthopedic examination with a physician with appropriate expertise to assess the severity of her lumbar spine disability. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the spine should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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. The examiner should also describe all neurologic manifestations, to include, but not limited to bowel or bladder impairment. The examiner is to provide a statement concerning how the lumbar spine disability affects functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations the Veteran would likely experience as a result of her lumbar spine disability. The examiner must provide a comprehensive rationale for the opinions. 7. Schedule the Veteran for a separate VA neurological examination with a physician with appropriate expertise to assess the severity of her radiculopathy of the lower extremities associated with her lumbar spine. It is imperative that the claims file be made available to the examiner in connection with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should identify any specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of the nerve (that is, whether it is mild, moderate, moderately severe, or severe in nature). The examiner should also identify any muscular atrophy. The examiner is to provide a statement concerning how any radiculopathy affects her functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations she would experience as a result of any radiculopathy. The examiner must provide a comprehensive rationale for the opinions. (Continued on the next page) 9. For the period prior to March 1, 2016, a determination should be made as to whether it is necessary to refer the Veteran's claim for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether her service-connected disabilities (degenerative disc disease, lumbar spine (100% 10/20/2011; 10% 02/01/2012); radiculopathy, right lower extremity (10% 10/20/2011); radiculopathy, left lower extremity (20% 10/20/2011; 10% 02/09/2017) preclude the Veteran from participating in gainful employment. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.