Citation Nr: 21007361 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-28 957 DATE: February 9, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for lumbar spine disability is denied. REMAND Entitlement to service connection for a right hip disability secondary to low back disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The Veteran has not been shown to have ankylosis of the lumbar spine or to experience incapacitating episodes with a total duration of 6 weeks or more in a 12-month period. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242 and 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from January 1990 to April 1990 and from November 1990 to November 1994. These claims were previously before the Board in August 2017 and were remanded with instructions to obtain additional VA examinations and opinions addressing the relevant disabilities. In September 2020 the claims were again remanded with instructions for the Agency of Original Jurisdiction (AOJ) to review and consider the findings of the August 2017 examination. After reviewing the opinions obtained, the Board finds that the remand directives have been satisfied with respect to the claim for increased disability rating for the lumbar spine and no further development is required with respect to that issue. The remaining issues, however, are remanded below for further development inasmuch as the instructions of the September 2020 remand were not satisfied. Entitlement to a disability rating in excess of 40 percent for lumbar spine disability The Veteran is currently assigned a 40 percent disability rating for his lumbar spine disability and seeks a higher disability rating. The Board notes that a disability rating in excess of 40 percent for a back disability requires either ankylosis (lack of motion) in the lumbar spine or incapacitating episodes (which require treatment by a physician and physician-prescribed bed rest) with a total duration of at least 6 weeks during the preceding 12 month period. 38 C.F.R. § 4.71a, Note (1), Diagnostic Codes 5242 and 5243. Ratings based on limitation of motion include consideration of pain if the pain affects “some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, because “pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). During the appeals period, the Veteran has been provided VA examinations in June 2016, August 2017, and November 2020. At the June 2016 VA examination, lumbar spine range of motion included forward flexion to 80 degrees. (See C&P Exam, 06/07/2016.) At the August 2017 VA examination, the Veteran’s had lumbar forward flexion to 65 degrees. (See C&P Exam, 08/01/2017.) At the November 2020 VA examination, the Veteran’s lumbar spine range of motion included forward flexion to 80 degrees. (See C&P Exam, 11/04/2020.) At the August 2017 VA examination, the Veteran reported having pain flare-ups during which he could not feel his feet and stated that he had difficulty sitting or standing for prolonged periods of time. The examiner indicated that flares would reduce the Veteran’s range of motion. It was estimated that flexion would be reduced to 55 degrees during a flare-up. At the November 2020 VA examination, the Veteran denied experiencing pain flare-ups but noted it was difficult to sit, stand, or lay down for any length of time due to pain. The Veteran has also had a private examination of his spine, in December 2016. (See Medical Treatment Record, 12/22/2016.) The private provided noted the Veteran’s history of a failed spinal fusion in the lumbar spine and the Veteran’s complaints of daily pain flare-ups. The Veteran reported having missed at least six weeks of work annually since 2011 as a result of his back pain. He experienced back pain severe enough that he could not get out of bed about once a week. The provider offered the opinion that the 40 percent disability rating assigned did not adequately reflect the severity of the Veteran’s lumbar spine disability. Specifically, the provider felt that the Veteran’s disability picture reflected a severe level of disability rather than a moderate level of disability. The Board notes that the examination was conducted via a phone interview rather than in person. The Board has reviewed the entirety of the medical evidence of record and finds that the requirements for a disability rating in excess of 40 percent for lumbar spine disability have not been met. Specifically, the Veteran has not shown ankylosis of the spine, nor is there evidence that even during flare-ups the limitation of motion more nearly approximates ankylosis of the lumbar spine. In addition, the record does not show that the Veteran has experienced at least 6 weeks of incapacitating episodes as defined in 38 C.F.R. § 4.71a, Note (1) in a 12-month period. The Board acknowledges the opinion of the private provider in December 2016, but notes that the assigned 40 percent disability rating is not based on judgment that the Veteran’s lumbar spine disability is of a moderate rather than a severe nature; rather, it is based on specific diagnostic criteria which the private provider appears not to have considered. Also, as noted above, that provider only interviewed the Veteran over the phone and did not base his conclusions on an in-person examination. For these reasons, the opinion finding a 40 percent disability rating inadequate is of limited probative value when the provider of the opinion lacks knowledge of the basis for the rating. Further, the Board notes that the claim for increased disability rating for lumbar spine disability has been remanded in the past, with directions to obtain more specific medical opinions. For example, in August 2017 the examiner was instructed to provide an opinion on the impact of flare-ups on the Veteran’s ability to function. The response did not indicate a functional impact of pain flare-ups that would more nearly approximate the criteria for a rating in excess of 40 percent. For all of the reasons set forth above, the Board finds that the claim for increased disability rating for lumbar spine disability must be denied. 38 C.F.R. § 4.71a. REASONS FOR REMAND Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Entitlement to service connection for a right hip disability The Veteran seeks service connection for a right hip disability that he asserts is a result of his low back disability. He has been afforded VA examinations in March 2018 and September 2020 addressing his right hip claim. At the March 2018 examination, the examiner noted an X-ray showing mild bilateral hip osteoarthritis but offered the opinion that this was not related to service due to the length of time that had elapsed between service and the evidence of arthritis. (See C&P Exam, 03/06/2018.) The matter was remanded to the AOJ to address the question of secondary service connection for right hip disability as a result of the Veteran’s service-connected low back disability. However, the VA examiner in November 2020 offered the opinion that there was no clinical objective evidence of a disability affecting the right hip. (See C&P Exam, 11/04/2020.) Instead, the examiner attributed the Veteran’s complaints of hip pain to the low back disability. In light of the findings of arthritis on X-ray in February 2018, however, the Board finds this opinion to be inadequate. A new opinion addressing the objective X-ray evidence of arthritis in both hips must be obtained on remand. Entitlement to service connection for a right shoulder disability The Veteran seeks service connection for a right shoulder disability that he asserts is related to a shoulder strain incurred in service 1992. The Board notes that this claim was previously considered and remanded in September 2020 for an additional VA examination and opinion. A review of the opinion provided in November 2020 shows that not all of the questions posed were addressed. As such, the opinion is inadequate, and the matter must be remanded again for a VA examination and opinion by a different examiner. Entitlement to service connection for a left knee disability The Veteran also seeks service connection for a left knee disability. As noted, this claim was previously before the Board in September 2020 and was remanded for an additional VA examination and opinion. The Board finds that the opinion obtained in November 2020 was inadequate for adjudicative purposes and did not comply with the remand directives. Specifically, the November 2020 did not show consideration of secondary service connection nor the issue of aggravation of a non-service-connected disability by service-connected disabilities. Therefore, an additional VA examination and opinion by a different VA examiner must be obtained on remand. Accordingly, the case is REMANDED for the following action: 1.Obtain additional VA examinations and opinions from providers other than the one who completed the November 2020 VA examination to address the Veteran’s claims of service connection for right hip, right shoulder, and left knee disabilities. a) With respect to the right hip claim, the VA examiner should offer an opinion as to whether it is at least as like as not (probability greater than 50 percent) that any disability affecting the right hip, to include osteoarthritis as shown on X-ray in 2018, was caused or aggravated by the Veteran’s service-connected disabilities, to include lumbar spine disability and right knee disability. In rendering the opinion, the examiner must address the significance, if any, of the Veteran’s history of symptoms including pain and locking in the hips, and of the findings on X-ray in 2013 as compared to 2018. The examiner should state whether any right hip disability was caused by any service-connected disability or the combined effects of more than one disability. The examiner should also state whether any right hip disability was aggravated (made worse by) any service-connected disability or the combined effects of more than one disability. In the event that the examiner concludes that the right hip disability was aggravated by a service-connected disability, the examiner shall provide an estimate of the baseline level of disability prior to the point of aggravation. b) With respect to the right shoulder disability, the VA examiner should offer an opinion as to whether it is at least as likely as not (probability greater than 50 percent) that any disability affecting the right shoulder, to include acromioclavicular impairment, is the result of service, to include the strain noted in 1992. The examiner should offer an opinion regarding the significance, if any, of the Veteran’s range of motion on examination in 2018 as compared to 2020, of the severity of symptoms present in the Veteran’s left shoulder, and the impact, if any, of the Veteran’s service-connected low back and right knee disabilities. The examiner should indicate the relationship, if any, between the Veteran’s symptoms and any diagnosed disability affecting the cervical spine, whether or not such disability is service connected. c) With respect to the left knee disability claim, the examiner should offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that any disability of the left knee was caused or aggravated by any service-connected disability, to include lumbar spine disability and right knee disability. The examiner must specifically address the significance, if any, of the symptoms affecting the left knee as compared to those in the right knee. The examiner must also address the impact, if any, of any alteration in gait or posture resulting from the service-connected lumbar spine and right knee disabilities. The examiner should indicate whether any left knee disability was caused by any service-connected disability or the combined effects of more than one disability. The examiner should also state whether any left knee disability was aggravated (made worse by) any service-connected disability or the combined effects of more than one disability. In the event that the examiner concludes that the left knee disability was aggravated by a service-connected disability, the examiner shall provide an estimate of the baseline level of disability prior to the point of aggravation. The examiner should provide a statement of the rationale or reasons for every opinion provided, to include citing to any relevant evidence of record and to any medical treatise or literature which informed the opinion. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.