Citation Nr: 21076644 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-31 857 DATE: December 27, 2021 REMANDED A rating in excess of 40 percent for right upper extremity reflex sympathetic dystrophy is remanded. A rating in excess of 20 percent for right anterior thigh reflex sympathetic dystrophy is remanded. A rating in excess of 20 percent for thoracolumbar spine disability, with degenerative joint disease, is remanded. REASONS FOR REMAND The Veteran had active service from March 1991 to September 1997 1. A rating in excess of 40 percent for right upper extremity reflex sympathetic dystrophy is remanded. 2. A rating in excess of 20 percent for right anterior thigh reflex sympathetic dystrophy is remanded. In its June 2021 Remand instructions, the Board of Veterans' Appeals (Board) directed that the Veteran was to be afforded a VA examination, as in March 2019, the Veteran submitted statements, from herself and eleven family and friends, describing her symptoms as to her reflex sympathetic dystrophy of her right upper extremity and right anterior thigh. Specifically, the June 2021 Board remand directed the prospective examiner "consider the statements submitted by the Veteran and her family and friends describing observation of her [right upper extremity] and [right lower extremity] symptoms and functional impairment." The Veteran was afforded the requested VA examination in July 2021. The evidence review section of the examination report does not list any of the statements referenced, nor does the body of the examination report otherwise reference the statements. In an October 2021 addendum opinion, the same examiner was asked to identify if the statements were considered, and if so, to "document that fact." In response, the examiner stated that the July 2021 remand was reviewed. Although the July 2021 remand references the March 2019 statements, the remand does not specifically provide the content of the March 2019 statements. As such, a review of the July 2021 remand is not sufficient to satisfy the instruction to review the March 2019 statements. As the examiner did not specify, in the examination report, that the March 2019 statements were reviewed, and the addendum opinion only stated the July 2021 remand was reviewed, the July 2021 remand instructions have not been substantially complied with. Accordingly, another examination is warranted. Stegall v. West, 11 Vet. App. 268 (1998). 3. A rating in excess of 20 percent for thoracolumbar spine disability, with degenerative joint disease, is remanded. In a September 2020 Memorandum decision, the United States Court of Appeals for Veterans Claims (Court) decision found remand was warranted as an April 2015 VA examiner's finding, that he was unable to provide an opinion regarding additional loss of range of motion of during flare-ups was inadequate. Pursuant to the September 2020 Memorandum decision, in June 2021, the Board remanded the claim and directed that the Veteran be afforded a VA examination and the prospective examiner must address "the degree of functional loss during flare-ups". The Veteran was afforded the requested VA examination in July 2021. During the July 2021 examination, the Veteran reported daily flare-ups that were "moderate to severe". Further, during prior the April 2015 VA examination, the Veteran reported that her flare-ups consisted, in part, of her back going "out to the point of having a challenging time walking or standing." Despite this evidence of the Veteran reporting moderate to severe flare-ups and flare-ups resulting in functional loss, both currently and in April 2015, the July 2021 examiner found that the evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups. Because the examiner did not address the evidence suggesting additional functional loss during flare-ups, a remand is warranted for another examination. Id. Finally, in light of the remand for the matters discussed above, and as the record reflects the Veteran receives continuing treatment for her disabilities at issue, updated VA treatment records, from July 2021 to the present, should be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Obtain any of the Veteran's updated VA treatment records from July 2021 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right upper extremity reflex sympathetic dystrophy and right anterior thigh reflex sympathetic dystrophy. The clinician should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The clinician must review the record, including statements the Veteran submitted in March 2019, from herself and eleven family and friends, describing her symptoms as to her reflex sympathetic dystrophy of her right upper extremity and right anterior thigh, and should note that review in the report. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected thoracolumbar spine disability. The clinician 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. (a.) The clinician must test and provide range of motion results for the Veteran's active motion, passive motion, including with pain, and on weight-bearing and without weight-bearing, as possible. If providing any of these measurements is not possible, the clinician should so state. (b.) The clinician must provide or estimate any functional loss due flare-ups, in terms of additional range of motion loss, including with consideration of the April 2015 and July 2021 examination reports. The Board is not permitted to accept a rationale that the clinician is unable to offer an opinion without resort to speculation based on an aversion to offering an opinion on issues not directly observed. The clinician 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, or an opinion regarding symptoms, or functional impairment during flare-ups, without speculation, the clinician 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 clinician does not have the knowledge or training. 4. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.