Citation Nr: 21007207 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-35 992A DATE: February 9, 2021 ORDER Entitlement to service connection for left hip condition associated with left knee condition (now diagnosed as arthritis) is dismissed. Entitlement to service connection for left hip painful motion associated with left knee condition (now diagnosed as arthritis) is dismissed. Entitlement to service connection for left hip limitation of motion associated with left knee condition (now diagnosed as arthritis) is dismissed. Entitlement to service connection for allergic rhinitis is dismissed. Entitlement to service connection for sinusitis is dismissed. Entitlement to service connection for cervical spine disorder (claimed as neck disability) is dismissed. REMANDED Entitlement to a disability rating in excess of 20 percent prior to March 12, 2020 for status post Bankart repair of the left shoulder is remanded. Entitlement to a disability rating in excess of 30 percent from March 12, 2020 for status post Bankart repair of the left shoulder is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s claim for entitlement to service connection for left hip condition associated with left knee condition (now diagnosed as arthritis) was granted by the RO and there no longer remains allegations of errors of fact or law for appellate consideration. 2. During the period on appeal, the Veteran’s claim for entitlement to service connection for left hip painful motion associated with left knee condition (now diagnosed as arthritis) was granted by the RO and there no longer remains allegations of errors of fact or law for appellate consideration. 3. During the period on appeal, the Veteran’s claim for entitlement to service connection for left hip limitation of motion associated with left knee condition (now diagnosed as arthritis) was granted by the RO and there no longer remains allegations of errors of fact or law for appellate consideration. 4. During the period on appeal, the Veteran’s claim for entitlement to service connection for allergic rhinitis was granted by the RO and there no longer remains allegations of errors of fact or law for appellate consideration. 5. During the period on appeal, the Veteran’s claim for entitlement to service connection for sinusitis was granted by the RO and there no longer remains allegations of errors of fact or law for appellate consideration. 6. During the period on appeal, the Veteran’s claim for entitlement to service connection for cervical spine disorder (claimed as neck disability) was granted by the RO and there no longer remains allegations of errors of fact or law for appellate consideration. CONCLUSIONS OF LAW 1. The criteria for dismissal of the issue of entitlement to service connection for left hip condition associated with left knee condition (now diagnosed as arthritis) has been met. 38 U.S.C. § 7105. 2. The criteria for dismissal of the issue of entitlement to service connection for left hip painful motion associated with left knee condition (now diagnosed as arthritis) has been met. 38 U.S.C. § 7105. 3. The criteria for dismissal of the issue of entitlement to service connection for left hip limitation of motion associated with left knee condition (now diagnosed as arthritis) has been met. 38 U.S.C. § 7105. 4. The criteria for dismissal of the issue of entitlement to service connection for allergic rhinitis has been met. 38 U.S.C. § 7105. 5. The criteria for dismissal of the issue of entitlement to service connection for sinusitis has been met. 38 U.S.C. § 7105. 6. The criteria for dismissal of the issue of entitlement to service connection for cervical spine disorder (claimed as neck disability) has been met. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1990 until his honorable discharge in May 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in St. Petersburg, Florida. A transcript of the hearing has been associated with the record on appeal. In December 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left shoulder disability; schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left hip disorder and neck disorder; and obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s neck disorder is at least as likely as not related to service, to include findings of scoliosis in service. In response, in response, in September 2020, the RO obtained a VA examination to determine the nature and etiology of any neck disorder; a VA examination to determine the current severity of his service-connected left shoulder disability; and an examination by an appropriate clinician to determine the nature and etiology of any left hip disorder. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue(s) on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. 1. Entitlement to service connection for left hip condition associated with left knee condition (now diagnosed as arthritis) is dismissed. 2. Entitlement to service connection for left hip painful motion associated with left knee condition (now diagnosed as arthritis) is dismissed. 3. Entitlement to service connection for left hip limitation of motion associated with left knee condition (now diagnosed as arthritis) is dismissed. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. As noted above, in December 2019, the Board remanded the issue of entitlement to service connection for a left hip disorder for further development. Subsequent to the Board remand and in July 2020 or before, the RO granted entitlement to service connection for left hip condition. The Board notes that although there is no rating decision in the record showing the grant of service connection for this disability, beginning with the July 2020 Code Sheet, it does reflect that the disabilities are service connected at a non-compensable disability rate effective February 19, 2014. Additionally, in the September 2020 rating decision, the RO granted entitlement to service connection for left hip painful motion associated with left knee condition (now diagnosed as arthritis) rated at a 10 percent disability rating, and entitlement to service connection for left hip limitation of motion associated with left knee condition (now diagnosed as arthritis) rated at a non-compensable disability rating. Therefore, in the present case, because the RO granted the Veteran’s claims, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Any disagreement with respect to the effective date of the grant of service connection of for the initial disability assigned are considered downstream issues and unless separately appealed are not the subject of the Board’s jurisdiction. Accordingly, they are dismissed. 4. Entitlement to service connection for allergic rhinitis 5. Entitlement to service connection for sinusitis 6. Entitlement to service connection for cervical spine disorder (claimed as neck disability) Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. As noted above, in December 2019, the Board remanded the issue of entitlement to service connection for allergic rhinitis and sinusitis for further development. Subsequent to the Board remand and in July 2020 or before, the RO granted entitlement to service connection for sinusitis and entitlement to service connection for allergic rhinitis. The Board notes that although the September 2020 Supplemental Statement of the Case (SSOC) denied the issues on appeal and there is no rating decision in the record showing the grant of service connection for these disabilities, beginning with the July 2020 Code Sheet, it does reflect that the disabilities are service connected at a non-compensable disability rate effective February 19, 2014. Therefore, in the present case, because the RO granted the Veteran’s claims, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for status post Bankart repair of the left shoulder is remanded. In increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner’s failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN’S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record- including the veteran’s lay information-or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. The September 2020 VA examiner documented the Veteran’s left shoulder flare ups as “A burning knife like, sharp pain. May last 1-2 weeks.” The September 2020 VA examination is therefore inadequate because the VA examiner failed to elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record- including the veteran’s lay information-or explain why she or he could not do so. The matters are REMANDED for the following action: 1. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected status post Bankart repair of the left shoulder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner must utilize the appropriate Disability Benefits Questionnaire. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.