Citation Nr: 21077604 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-49 086 DATE: December 30, 2021 REMANDED Entitlement to a rating in excess of 20 percent, prior to March 27, 2018, and in excess of 40 percent thereafter for degenerative joint disease of the lumbar spine is remanded. Entitlement to an initial rating in excess of 10 percent, prior to March 10, 2021, and in excess of 20 percent thereafter for radiculopathy of the right lower extremity is remanded. Entitlement to service connection for degenerative arthritis of the cervical spine is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran had active-duty service from November 1974 to September 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In March 2021, the Veteran had a hearing before the undersigned Veterans Law Judge via Video Conference and a transcript of that hearing is of record. In June 2021, the Board remanded these claims for additional development. During the pendency of the appeal, the Veteran's radiculopathy of the right lower extremity was increased from 10 to 20 percent based on an August 2021 VA lumbar spine examination. According to the Veteran's Appellate Brief from November 2021, the Veteran is also seeking a rating increase for his radiculopathy of the right lower extremity. The Board finds that, as the rating for this disability was increased during the pendency of the increased rating on appeal, it also has jurisdiction over this issue. 1. Entitlement to a rating in excess of 20 percent, prior to March 27, 2018, and in excess of 40 percent thereafter for degenerative joint disease of the lumbar spine is remanded. 2. Entitlement to an initial rating in excess of 10 percent, prior to March 10, 2021, and in excess of 20 percent thereafter for radiculopathy of the right lower extremity is remanded. While the Board sincerely regrets further delay in this matter, additional development is required before the Veteran's claim may be adjudicated on the merits. The Board remanded the claim in June 2021 to afford the Veteran a VA examination. The Board notes that VA examinations must comply with certain precedential opinions. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (the Court) held that in order for an examination to be adequate, it must include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. A review of the Veteran's VA examinations indicates that a new VA examination and retroactive opinions are warranted in light of Correia. Additionally, the Board notes that resolution of the claim for an increased rating for degenerative joint disease of the lumbar spine may have a significant impact on the Veteran's claim for an increased rating for radiculopathy of the right lower extremity, therefore, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). 3. Entitlement to service connection for degenerative arthritis of the cervical spine is remanded. The Veteran asserts that his cervical spine originated due to his service-connected lumbar spine disability. Although further delay is regrettable, the Board finds that additional development is still necessary prior to appellate review. During the March 2021 Board hearing the Veteran provided sworn testimony and explained his belief that his cervical spine disability originated due to his service-connected lumbar spine disability. The Board remanded the claim in June 2021 to afford the Veteran a VA examination, which was obtained in August 2021. The August 2021 VA examiner confirmed that the Veteran has been diagnosed with degenerative arthritis of the cervical spine and anterolisthesis. The VA examiner provided negative nexus opinions, explaining that the Veteran did not have complaints of a neck injury or a diagnosed disability during active-duty service. As for a theory of secondary service connection, the examiner opined that the Veteran's cervical spine disability was less likely than not caused by his service-connected lumbar spine disability, noting that they are different joints within the spine, and that orthopedic literature stated they don't share pathophysiology with each other. The examiner added that there is no clear evidence to suggest an injury to one joint significantly affects the other joint. With regard to aggravation, the examiner noted that medical evidence was insufficient to support to determine baseline level of severity, and that it is common for cervical spine disabilities to have pain and stiffness with joints, but they are not beyond their normal aggravations as there is no gross deformities or injury rising to the level of surgery or any more advanced measures. The Board finds the medical nexus opinion to be insufficient for adjudication purposes. The opinion did not contain adequate discussion of evidence or rationale to explain the conclusions. In addition, the VA examiner also did not render an adequate medical opinion as to whether the service-connected lumbar spine disability aggravated or worsened the cervical spine disability. See Allen v. Brown, 7 Vet. App. 439, 449 (1995) ("[I]t is a big stretch of the English language to construe the phrase 'no etiological relationship between the Veteran's service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis' as encompassing aggravation, especially considering the use of the word 'onset.'"). The Board therefore finds that a new medical examination and medical nexus opinion is needed to opine on whether the Veteran's cervical spine disability was caused or has been aggravated by the service-connected lumbar spine disability. 4. Entitlement to service connection for a left ankle disability is remanded. 5. Entitlement to service connection for a right ankle disability is remanded. 6. Entitlement to service connection for a left shoulder disability is remanded. 7. Entitlement to service connection for a right shoulder disability is remanded. The Veteran asserts that his claimed bilateral ankles and bilateral shoulder disabilities originated due to his service-connected lumbar spine disability. Although further delay is regrettable, the Board finds that additional development is still necessary prior to appellate review. During the March 2021 Board hearing the Veteran provided sworn testimony and explained his belief that his claimed bilateral ankles and bilateral shoulders disabilities originated due to his service-connected lumbar spine disability. The Board remanded the claim in June 2021 to afford the Veteran VA examinations for these claimed disabilities. The August 2021 VA examiner concluded that the Veteran did not have any disabilities in his bilateral ankles or his bilateral shoulders. However, the Board notes that, in its remand from June 2021, the Board issues remand directives consistent with the United States Court of Appeals for the Federal Circuit's (Federal Circuit's) holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), providing that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The Board finds that the August 2021 VA examiner did not comply with the June 2021 remand directives. Therefore, these matters must be remanded for compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. The Veteran must be afforded a VA examination by a new examiner with appropriate expertise to determine the current severity of the Veteran's service-connected lumbar spine disability. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records, and the VA and private treatment records. Full range of motion testing must be performed where possible. The joints should be tested in both active and passive motion, in weight bearing and non-weight bearing, describing objective evidence of painful motion, if any, during each test. If the examiner is unable to conduct the required testing in this case, he or she should clearly explain the basis for this decision. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The Veteran's entire claims file, to include a copy of this decision, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide the Veteran an examination. After the examination with the Veteran has been conducted, the examiner should provide the following opinions: (a) Determine whether the Veteran's range of motion results from the July 2016, October 2018 and August 2021 VA examinations would have been reduced if tested in both active and passive motion and in weight bearing and non-weight bearing. To the examiner's best ability, the additional range of motion loss should be described in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. (b) The examiner should also provide an opinion regarding the extent of the Veteran's functional loss as described in his July 2016, October 2018 and August 2021 VA examinations, and his pertinent lay statements from the June 2021 board hearing. To the examiner's best ability, the additional range of motion loss should be described in degrees based on that information. If the examiner is unable to provide an opinion on the subject, he or she should clearly explain the basis for this decision. The examiner is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions. If his reports are discounted, the examiner should provide an explanation for doing so. The Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. A complete rationale for all opinions rendered must be provided. If the examiner cannot provide an opinion without resorting to speculation, he or she should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. The Veteran must be afforded a VA examination by a new examiner with appropriate expertise to determine the nature and etiology of the Veteran's diagnosed cervical spine disability. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records, and the VA and private treatment records. The examiner should then provide an opinion considering whether the cervical spine disability is at least as likely as not proximately due to or the result of any incident of the Veteran's service or due to, or aggravated by, a service-connected disability. The examiner is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions. If his reports are discounted, the examiner should provide an explanation for doing so. The Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. A complete rationale for all opinions rendered must be provided. If the examiner cannot provide an opinion without resorting to speculation, he or she should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. The Veteran must be afforded a VA examination by a new examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed bilateral ankle and bilateral shoulder disabilities. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records, and the VA and private treatment records. The examiner should then: (a) Identify all disabilities relating to the Veteran's: (i) Left ankle (ii) Right ankle (iii) Left shoulder (iv) Right shoulder (b) For all disabilities identified in any subpart of part (a), provide an opinion considering whether each is at least as likely as not proximately due to or the result of any incident of the Veteran's service or due to a service-connected disability. (c) If the Veteran's reported left ankle, right ankle, left shoulder, or right shoulder pain are not found to be a manifestation of any disability, but result in functional impairment of the Veteran's left ankle, right ankle, left shoulder, or right shoulder, describe whether such functional impairment is at least as likely as not proximately due to or the result of any incident of the Veteran's service or due to a service-connected disability. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's left ankle, right ankle, left shoulder, or right shoulder pain on his ability to stand, walk, run, and maintain balance. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.