Citation Nr: 21076927 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-22 255 DATE: December 28, 2021 REMANDED The claim of entitlement for an evaluation in excess of 20 percent for vertebral fracture of the L-3, with residuals including degenerative disc disease and prosthetic discs L4 to L5 and L5 to S1 (hereinafter a lumbar spine disability) is remanded. The claim of entitlement to an initial compensable evaluation for a right knee strain claimed as degeneration (hereinafter a right knee disability) is remanded. The claim of entitlement to an initial evaluation in excess of 20 percent for left shoulder degenerative joint disease, claimed as bone spurs (hereinafter a left shoulder disability) is remanded. REASONS FOR REMAND The Veteran had honorable active-duty service with the United States Air Force from May 1987 to March 1992, January 1996 to July 1996, January 1997 to June 1997, July 2004 to January 2005, February 2009 to April 2010, May 2010 to September 2012, March 2013 to November 2013, January 2015 to September 2015, January 2016 to June 2016. These matters are before the Board of Veteran's Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied increased ratings for the Veteran's lumbar spine disability, right knee disability, and a left shoulder disability. The Veteran was scheduled for a hearing on January 7, 2021, of which he did not attend. As of the date of this decision no documentation has been received by VA from the Veteran indicating a need to reschedule. Therefore, the Veteran's claim will be processed as though the request for a hearing had been withdrawn. No further requests for a hearing will be granted for this claim unless the Veteran provides correspondence indicating a good cause as to why the Veteran did not attend the hearing scheduled. See 38 C.F.R. § 20.704 (d). The Board notes that the Veteran's medical treatment records are only associated with the record up through 2017. Upon remand the Veteran's updated medical treatment records must be obtained and associated with the Veteran's file. Entitlement to an in excess of 20 percent for a lumbar spine disability Entitlement to an initial compensable evaluation for a right knee disability Entitlement to an initial evaluation in excess of 20 percent for a left shoulder disability The Veteran contends that he is entitled to an evaluation in excess of 20 percent for a lumbar spine disability, a compensable evaluation for a right knee disability, and an initial evaluation in excess of 20 percent for a left shoulder condition. The Veteran received VA examinations for his lumbar spine disability, his right knee disability, and his left shoulder disability all in March 2017. In each VA examination the examiner, who provided all three examinations, found the Veteran's repetitive use over time and flare ups were neither medically consistent or inconsistent with the Veteran's statements. However, the examiner also found they could not say without mere speculation whether there would be a limitation to the Veteran's functional ability due to pain, weakness, fatigability, or incoordination as the Veteran was not being examined during a flare up or after repetitive use over time. The Board finds that the VA examinations are inadequate for VA purposes, as the examinations do not address functional loss with repetitive use over time and flare ups. To adequately address functional loss or functional impairment of a musculoskeletal disability the examiner must express an opinion as to whether pain could significantly limit functional ability and, if possible, provide a picture of that functional loss in terms of additional range of motion loss due to pain on use or during flare ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, if there is evidence of flare ups with functional loss and the examiner concludes that they are unable to provide an opinion as to the estimated range of motion without resorting to speculation, then VA may rely on such a conclusion when (1) it is clear that the examiner has considered all procurable and assembled data, and (2) the opinion must result from a limitation of the medical community at large and not a limitation based on lack of expertise, insufficient testing, or unprocured testing by the examiner. Id. Additionally, VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). The Board notes that the Veteran's last examinations assessing the severity of his service-connected disabilities were in March 2017, approximately four and a half years ago. In light of the foregoing, a more contemporaneous examination is warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected conditions. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Upon remand the Veteran is entitled to new VA examinations for his lumbar spine disability, right knee disability, and left shoulder disability, to determine the current severity of each condition. These matters are REMANDED for the following actions: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for a new VA examination with an appropriate clinician (a telehealth examination is also an option if found appropriate), to assess the present nature and severity of his lumbar spine disability. A complete copy of the claims file must be made available to the examiner. All necessary tests and studies, to include X-rays and range of motion studies, should be completed, and all clinical findings reported in detail. After a thorough review of the medical and lay evidence of record, the examiner should consider the following: (a.) Conduct range of motion testing of the Veteran's lumbar spine disability, expressed in degrees in active motion, passive motion, weight-bearing, and non-weight-bearing (where applicable). (b.) The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts that he is unable to perform range of motion testing due to pain. (c.) Render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination, muscle spasms, localized tenderness, vertebral body fracture with loss of 50 percent or more in height, guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, lordosis, or abnormal kyphosis associated with the cervical spine. If pain on motion is observed, the examiner should indicate the point at which pain begins, where possible. (d.) The examiner is also to consider the Veteran's statements regarding his functional limitations, effects on his daily life, and pain due to his lumbar spine disability. (e.) The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his lumbar spine disability due to pain or any of the other symptoms during flare ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare ups and his description as to the extent of functional loss during a flare up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After obtaining any outstanding records, schedule the Veteran for an examination (a telehealth examination is also an option) by an appropriate clinician to determine the current level of severity of his right knee disability. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. All indicated tests and studies should be performed and the examiner should address the following: (a.) Determine the current range of motion of the Veteran's right knee disability this is to specifically include range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, as well as describe how the Veteran's degree of limited motion in his right knee compares to the degree of motion of the left knee. (b.) The examiner should also indicate whether there is additional limitation of motion of the right knee associated with repetitive motion and/or functional limitation due to factors such as pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, or incoordination. (c.) The examiner should also identify and describe in detail any additional symptomatology or impairment found to be associated with the Veteran's right knee. (d.) Finally, the examiner should describe in detail all functional loss associated with the Veteran's right knee. In doing so, the examiner should fully consider and discuss the Veteran's lay reports of functional loss on both his daily life and ability to work. (e.) The examiner should elicit from the Veteran a complete history of any flare ups of his right knee disability. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare ups of the Veteran's right knee disability. The examiner should describe the additional loss, in degrees, if possible. In rendering the opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including lay statements of the Veteran. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare up or after repetitive use over time. Sharp v. Shulkin, 29 Vet. App. 26 (2017). A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. After obtaining any outstanding records, schedule the Veteran for a new VA examination with an appropriate clinician (a telehealth examination is also an option if found appropriate), to assess the present nature and severity of his left shoulder disability. A complete copy of the claims file must be made available to the examiner. All necessary tests and studies, to include X-rays and range of motion studies, should be completed, and all clinical findings reported in detail. After a thorough review of the medical and lay evidence of record, the examiner should consider the following: (a.) Conduct range of motion testing of the Veteran's left shoulder disability, expressed in degrees in active motion, passive motion, weight-bearing, and non-weight-bearing. (b.) Render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination, and localized tenderness. If pain on motion is observed, the examiner should indicate the point at which pain begins, where possible. (c.) The examiner is also to consider the Veteran's statements regarding his functional limitations, effects on his daily life, and pain due to his left shoulder disability. (d.) The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his left shoulder disability due to pain or any of the other symptoms during flare ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare ups and his description as to the extent of functional loss during a flare up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Veteran and his representative an opportunity to respond, and return the case to the Board. Nykeia F. Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.A. Teich, 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.