Citation Nr: 21009115 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 14-33 171 DATE: February 19, 2021 ORDER Entitlement to service connection for right lower extremity radiculopathy secondary to service-connected lumbosacral strain disability is granted. Entitlement to service connection for left lower extremity radiculopathy secondary to service-connected lumbosacral strain disability is granted. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to an initial rating in excess of 20 percent for right shoulder degenerative arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to October 1, 2018 (excluding a temporary total evaluation from August 28, 2017, to September 30, 2018) for right knee residuals of a meniscal tear is remanded. Entitlement to a rating in excess of 30 percent on or after October 1, 2018 for right knee residuals of a meniscal tear status post total knee replacement is remanded. Entitlement to compensation for total disability based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran has been shown to have a current diagnosis of right lower extremity radiculopathy that is caused by his service-connected lumbar spine disability. 2. The Veteran has been shown to have a current diagnosis of left lower extremity radiculopathy that is caused by his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection right lower extremity radiculopathy secondary to a service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.310 (2020). 2. The criteria for service connection left lower extremity radiculopathy secondary to a service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2011, July 2014, and March 2017 rating decisions. In October, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. The Board notes that the Veteran’s appeal included the issues of entitlement to service connection for a left knee, low back, and acquired psychiatric disorders. In a November 2020 rating decision, the Regional Office (RO) granted service connection a lumbosacral strain, left knee degenerative arthritis, and chronic adjustment disorder with anxiety and depression. The Agency of Original Jurisdiction’s (AOJ) grant of service connection constitutes a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, those matters are no longer on appeal, and no further consideration is necessary. The Board notes that the Veteran was previously represented by a private attorney. However, prior to recertification of the appeal, the attorney withdrew his representation. To date, the Veteran has not designated another individual or Veterans Service Organization as his representative. Therefore, the Veteran is currently unrepresented before the Board in this appeal. Service Connection The Veteran contends that his right and left lower extremity radiculopathy is caused or aggravate by his service-connected disabilities, including his lumbar spine, right shoulder, and right knee disabilities. See, e.g., November 2016 claim and February 2019 correspondence. Service connection may be established on a secondary basis for disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists, and that the current disability was either caused by or aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995). As an initial matter, the Board notes that the Veteran has been diagnosed with right and left lower extremity radiculopathy during the pendency of the appeal. In this regard, in a January 2017 VA spine examination report, the examiner noted that the Veteran had mild left lower extremity radiculopathy involving the sciatic nerve. A January 2017 VA peripheral nerve examination report also noted a diagnosis of mild left leg sciatica. In addition, in a September 2018 VA spine examination report, the examiner indicated that the Veteran had mild radiculopathy involving the femoral and sciatic nerves, bilaterally. The Board does acknowledge that, in a September 2020 VA lumbar spine examination report, the examiner indicated that the Veteran did not have signs or symptoms of right or left lower extremity radiculopathy. In an October 2020 VA addendum medical opinion, the examiner also stated that the Veteran did not have a diagnosis of radiculopathy. However, the examiner did not reconcile his opinion with the prior VA examination findings of record. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that a requirement of current disability is satisfied when claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim). Thus, the Board finds that the current disability element has been met. The Veteran is also service-connected for right knee residuals of a meniscal tear status-post total knee replacement, right shoulder degenerative arthritis, and a lumbosacral strain. Thus, the second element of secondary service connection is established. In a January 2017 VA medical opinion, the examiner opined that the Veteran’s back pain and left leg pain were related to his weight gain and post-service employment. Notably, however, the examiner acknowledged that the Veteran’s left leg pain was associated with his back disorder. Moreover, in an August 2018 VA medical opinion, the examiner opined that the Veteran’s right and left lower extremity radiculopathy was secondary to his back disorder rather than diabetic peripheral neuropathy. The Board finds January 2017 and August 2018 VA medical opinions probative on this matter, as they are based on a review of the record and the examiners’ own medical expertise, training, and knowledge. There are also no contrary opinions of record regarding the Veteran’s right and left lower extremity radiculopathy disorders as secondary to his service-connected lumbar spine disability. Based on the foregoing, the Board finds that the most probative evidence of record establishes that the Veteran’s right and left lower extremity radiculopathy was caused by his service-connected lumbar spine disability. Accordingly, the claims for service connection for right and left lower extremity radiculopathy will be granted. See 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disorder The Veteran was afforded a VA examination in September 2020 during which the examiner noted that his left shoulder pain caused functional loss. However, the examiner did not provide an etiology opinion because he concluded that the Veteran did not have a current diagnosis. The United States Court of Appeals (Court) has held that pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Moreover, the September 2020 examiner did not reconcile his opinion with the VA examination findings of record that noted diagnoses of left shoulder disorders, including degenerative arthritis and acromioclavicular joint arthropathy. See, e.g., January 2017, August 2018, and September 2018 VA examination reports. Therefore, a remand is necessary to obtain an additional VA medical opinion. Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to an increased rating for right shoulder degenerative arthritis Unfortunately, the Board finds that a September 2020 VA shoulder examination does not substantially comply with the Board’s October 2019 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The September 2020 examiner noted that the Veteran reported having flare-ups 1 to 2 times every 2 to 3 months and that his symptoms felt “like gout.” The examiner also provided estimated range of motion findings for flare-ups. However, there is no indication that he asked the Veteran to identify the duration of flare-ups, precipitating factors, and alleviating factors, as directed by the Board. As such, the examination report does not adequately describe the functional effects of the Veteran’s flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017) (requiring that examiners attempt to elicit information regarding the severity, frequency, and duration of flare-ups, including, if possible, degrees of additional loss of motion during flare-ups). Moreover, the examiner provided no rationale for his opinion regarding estimated range of motion findings as directed by the Board. Therefore, a remand is necessary. The Board also notes that the August 2018 and September 2018 VA examination reports did not adequately address the Veteran’s reported flare-ups. See Sharp, 29 Vet. App. at 34. In this regard, in the August 2018 examination report, the examiner stated that he was unable to describe the Veteran’s functional loss with repetitive use and flare-ups in terms of range of motion. However, the examiner did not explain why the Veteran’s lay statements regarding his variable degree of functional impairment provided insufficient information to render an opinion. In the September 2018 VA examination report, the examiner also indicated that he was unable to estimate any additional degree of range of motion loss during repetitive use and flare-ups without resorting to mere speculation. However, the examiner provided no rationale for his inability to provide such an opinion. The Board further notes that the April 2014, January 2017, August 2018, and September 2018 VA examination reports do not fully comply with Correia v. McDonald, 28 Vet. App. 156 (2016). In this regard, the April 2014 VA examinations did not include range of motion testing on passive range of motion, weight-bearing, and nonweight-bearing. In a September 2018 VA examination report, the examiner noted that the Veteran exhibited pain on passive motion and nonweight-bearing; however, he did not provide an estimate of range of motion lost in terms of degrees. In addition, in a January 2017 VA examination report, the examiner noted pain on examination that caused functional loss with flexion and abduction. In August 2018 and September 2018 VA examination reports, the examiners also noted pain on examination that caused functional loss with flexion, abduction, external rotation, and internal rotation. However, the examiners did not identify the points at which pain was observed. The Board is not permitted to base its decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, a retrospective medical opinion is needed to help the Board assess the severity and manifestations of the Veteran’s service-connected right shoulder disability. See Chotta v. Peake, 22 Vet. App. 80 (2008). 3. Entitlement to a rating in excess of 10 percent prior to October 1, 2018 (excluding a temporary total evaluation from August 28, 2017, to September 30, 2018) for right knee residuals of a meniscal tear status post total knee replacement 4. Entitlement to a rating in excess of 30 percent on or after October 1, 2018 for right knee residuals of a meniscal tear status post total knee replacement is remanded. The Veteran was afforded a VA examination in September 2020 during which the examiner noted that the Veteran reported having flare-ups when climbing stairs and with prolonged standing. However, the examiner did not elicit relevant information from the Veteran regarding the duration of his flare-ups or any alleviating factors, as directed by the Board in October 2019. Therefore, the Board finds that a remand is necessary to obtain an additional VA examination and medical opinion. Stegall, 11 Vet. App. at 271; see also Barr, 21 Vet. App. at 311. The Board further notes that the December 2009, January 2011, and October 2013 VA examinations do not fully comply with Correia v. McDonald, 28 Vet. App. 156 (2016). In this regard, the examiners did not include range of motion testing on passive range of motion, weight-bearing, and nonweight-bearing. In addition, in a December 2016 VA examination, the examiner noted that there was pain on examination for flexion that caused functional loss. Similarly, in an August 2018 VA examination, the examiner noted that there was pain on examination for flexion and extension that caused functional loss. However, the examiners did not identify the points at which pain was observed. The Board also notes that the October 2013, December 2016, and August 2018 VA examinations did not adequately address the Veteran’s functional limitation during flare-ups. In this regard, the October 2013 examiner did not address whether the Veteran had any additional limitation of range of motion during flare-ups. In a December 2016 examination, the examiner stated that he was unable to describe additional limitations due to pain, weakness, fatigability, or incoordination in terms of degrees of additional range of motion loss after repetitive use and during flare-ups because the Veteran experienced too much pain during the examination. In an August 2018 examination, the examiner stated that he was unable to describe the Veteran’s functional loss with repetitive use and flare-ups in terms of range of motion. However, the examiners’ supporting rationale does not reflect that efforts were made to estimate range of motion by eliciting information from the Veteran, medical records, and other sources. Sharp, 29 Vet. App. at 33. For these reasons, a retrospective medical opinion is also needed to help the Board assess the severity and manifestations of the Veteran’s service-connected right knee disability. See Chotta v. Peake, 22 Vet. App. 80 (2008). 5. Entitlement to TDIU In his August 2020 application for TDIU, the Veteran indicated that he became too disabled to work in August 2013 due to a right knee injury. The Veteran’s claim for TDIU also spans the entire period on appeal. See Harper v. Wilkie, 38 Vet. App. 356 (2018). Therefore, the Board finds that the issue of entitlement to TDIU is inextricably intertwined with the Veteran’s claims for increased ratings and service connection. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician regarding the etiology of any current left shoulder disorder. The entire claims file must be made available to the examiner. (a) The examiner should identify all current left shoulder disorders, including degenerative arthritis and/or acromioclavicular joint arthropathy. (b) For each disorder identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder was caused or aggravated by the Veteran’s service-connected right shoulder and right knee disabilities. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. In providing this opinion, the examiner must consider the full record, to include the Veteran’s lay statements that a greater burden was placed on his left shoulder due to the functional impairment caused by his service-connected disabilities. See, e.g., March 2018 Notice of Disagreement and December 2018 Substantive Appeal. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If there is a medical reason to doubt the history as reported, the examiner should so state. All opinions must be supported by detailed rationale. 2. Schedule the Veteran for an examination to determine the severity of his service-connected right shoulder disability. (a) The examiner should report all signs and symptoms necessary for evaluation of the Veteran’s right shoulder disability under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) for both of the Veteran’s shoulders and describe the effects of pain on active and passive motion, in weight-bearing and nonweight-bearing, or explain why any such information cannot be provided. (b) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating flare-ups. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examination must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use. (c) The examiner should describe whether pain significantly limits functional ability when the joint is used repeatedly over a period of time or during flare-ups (if reported), and indicate range of motion. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. (d) The examiner is asked to provide a retrospective opinion to estimate the degree of range of motion for passive motion, weight-bearing, and non-weight-bearing at the time of the April 2014 and August 2018 VA examinations (see VA examination reports dated August 22, 2018 and September 24, 2018). (e) The examiner is asked to estimate, if possible, the additional impairment (in terms of range of motion) due to pain based the evidence of record and the Veteran’s statements for the January 2017 and August 2018 VA examinations (see VA shoulder examination reports dated August 22, 2018 and September 24, 2018). (f) The examiner should also address the Veteran’s reports of flare-ups during the August 2018 and September 2020 VA examinations. The examiner is asked to describe whether pain significantly limited functional ability during flares, and indicate range of motion during flares (the examiner must glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources). All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 3. Schedule the Veteran for an examination to determine the severity of his service-connected right knee disability. (a) The examiner should report all signs and symptoms necessary for evaluation of the Veteran’s right knee disability under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) for both of the Veteran’s knees and describe the effects of pain on active and passive motion, in weight-bearing and nonweight-bearing, or explain why any such information cannot be provided. (b) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating flare-ups. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examination must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use. (c) The examiner should describe whether pain significantly limits functional ability when the joint is used repeatedly over a period of time or during flare-ups (if reported), and indicate range of motion. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. (d) The examiner is also asked to address whether, following the Veteran’s right knee joint replacement, there were chronic residuals consisting of severe painful motion or weakness in the affected extremity. (e) The examiner is asked to provide a retrospective opinion to estimate the degree of range of motion for passive motion, weight-bearing, and non-weight-bearing at the time of the December 2009, January 2011, an October 2013 VA examinations. (f) The examiner is asked to estimate, if possible, the additional impairment (in terms of range of motion) due to pain based the evidence of record and the Veteran’s statements for the December 2016 and August 2018 VA examinations. (g) The examiner should also address the Veteran’s reports of flare-ups during the October 2013, December 2016, and August 2018 VA examinations. The examiner is asked to describe whether pain significantly limited functional ability during flares, and indicate range of motion during flares (the examiner must glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources). (Continued on the next page)   All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.