Citation Nr: 21011554 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-28 619 DATE: March 2, 2021 REMANDED Entitlement to a rating in excess of 10 percent for thoracolumbar strain with sacroiliac dysfunction prior to May 10, 2018, and in excess of 20 percent thereafter, is remanded. Entitlement to a rating in excess of 20 percent for right shoulder labral tear, status-post arthroscopy and trapezius strain, is remanded. Entitlement to a rating in excess of 10 percent for seborrheic dermatitis and vaginal candidiasis is remanded. Entitlement to a compensable rating for scars of the shoulders, status post arthroscopic surgery, prior to May 10, 2018, and in excess of 20 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1990 to February 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In pertinent part, the RO granted service connection and a 10 percent rating for thoracolumbar strain with sacroiliac dysfunction; service connection and a 10 percent rating for right shoulder labral tear, status post arthroscopy and trapezius strain; service connection and a 10 percent rating for seborrheic dermatitis; service connection and a 0 (zero) percent (noncompensable) rating for vaginal candidiasis; and service connection and a noncompensable rating for scars of the shoulders, status post arthroscopy. Each of the awards were made effective March 1, 2012. In February 2017, while the Veteran’s appeal was pending, the RO combined seborrheic dermatitis and vaginal candidiasis under 38 C.F.R. § 4.118, Diagnostic Codes 7820-7806 and continued the prior 10 percent rating. In September 2018, the RO increased the rating for the right shoulder to 20 percent, effective March 1, 2012; increased the rating for the low back to 20 percent, effective May 10, 2018; and increased the rating for scars of the right shoulder to 20 percent, effective May 10, 2018. In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. On the day of the hearing, she also submitted correspondence asking that the power of attorney she had executed in favor of a representative be revoked. She is currently proceeding pro se. 1. Entitlement to a rating in excess of 10 percent for thoracolumbar strain with sacroiliac dysfunction prior to May 10, 2018, and in excess of 20 percent thereafter, is remanded. 2. Entitlement to a rating in excess of 20 percent for right shoulder labral tear, status-post arthroscopy and trapezius strain, is remanded. 3. Entitlement to a rating in excess of 10 percent for seborrheic dermatitis with vaginal candidiasis is remanded. 4. Entitlement to a compensable rating for scars of the shoulders, status post arthroscopic surgery, prior to May 10, 2018, and in excess of 20 percent thereafter, is remanded. During the February 2021 Board hearing, the Veteran testified that the disabilities at issue had gotten worse and/or otherwise changed since the time of the most recent VA examinations in 2018. Consequently, new examinations are warranted. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403(1997) (finding that VA should have scheduled the appellant for another examination under circumstances where he complained of increased disability two years after his last examination); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran also testified that she had received additional, relevant treatment from Atlantic Dermatology and Patients First. On remand, she can either submit the records of that treatment herself or, if she prefers, she can provide releases so that the agency of original jurisdiction can assist her in obtaining them. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing has been completed to the extent possible, arrange to have the Veteran scheduled for examinations of the thoracolumbar spine, right shoulder joint, seborrheic dermatitis, vaginal candidiasis, and scars of the right and left shoulders. The examiner(s) should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. With respect to the thoracolumbar spine and right shoulder, the examination(s) must include testing for pain on both active and passive motion, and in weight bearing and non-weight bearing, if feasible. If such testing is not possible, the examiner(s) should explain why. Also, as to the thoracolumbar spine and right shoulder, the examiner(s) must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiners) should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of her limitations, and disregarding the ameliorative effects of medication. The examiner should also be asked to indicate whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that, during all, or any portion, of the period from March 1, 2012 to May 9, 2018, the Veteran experienced functional loss in the thoracolumbar spine and/or right shoulder due to flare-ups or repeated use over time. If the answer to that question is yes, the examiner should express the loss in terms of degrees of additional loss in range of motion, if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of her limitations. In so doing, the examiner should offer an opinion as to whether it is at least as likely as not that the additional loss of function experienced by the Veteran as demonstrated in the report of the May 10, 2018 examination has been present to the same degree since March 1, 2012. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.