Citation Nr: 21022676 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-15 400 DATE: April 19, 2021 REMANDED Entitlement to service connection for pinguecula is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for loss of sensation in the left hand is remanded. Entitlement to service connection for loss of sensation of the right hand is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent for service-connected right knee degenerative arthritis based on limitation of extension is remanded. Entitlement to a rating in excess of 10 percent for service-connected right knee degenerative arthritis based on limitation of flexion is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1991 to January 1992 and from March 2005 to May 2006 and on active duty for training ( ACDUTRA) from October 3, 2009 to October 24, 2009 with additional periods of Reserve and Army National Guard service. The March 2019 statement of the case ( SOC ) addressed the issues of service connection for left ankle pain and swelling, service connection for a left shoulder condition, service connection for erectile dysfunction, service connection for lumbar spondylosis, myositis and multilevel degenerative disc disease, service connection for left hand loss of sensation, service connection for right hand loss of sensation, service connection for anxiety and depressive disorder, service connection for pinguecula, service connection for hearing loss, increased rating for gastroesophageal reflux disease (GERD), increased rating for allergic rhinitis, increased rating for right knee degenerative arthritis based on limitation of flexion, and increased rating for right knee degenerative arthritis based on limitation of extension. In his May 2019 substantive appeal (VA Form-9), the Veteran limited his appeal to the issues of pterygium, arthritis due to trauma, paralysis of all radicular groups, generalized anxiety disorder, and degenerative arthritis of the spine. The Board has construed the Veteran’s characterization of the issue of arthritis due to trauma as including his claims for service connection for left ankle pain and swelling and left shoulder condition as well as increased ratings for right knee degenerative arthritis based on limitation of flexion and right knee degenerative arthritis based on limitation of extension. The Board has also construed the Veteran’s characterization of the issue of pterygium as the claim for service connection for pinguecula. Further, the Board has construed the Veteran’s characterization of the claim for paralysis of all radicular group as including the claims for service connection for left hand, loss of sensation and right hand, loss of sensation. As the Veteran has limited the issues on appeal in his VA Form-9, the claims for service connection for erectile dysfunction, service connection for hearing loss, increased rating for GERD, and increased rating for rhinitis are not before the Board on appeal. In a March 2018 correspondence, the Veteran revoked the representation of the service organization of record and indicated that he wished to continue pro se in his appeal. In his May 2019 substantive appeal, the Veteran indicated that he does not want an optional Board hearing. See May 2019 VA Form-9. To the extent a January 2020 correspondence suggested the Veteran has a pending hearing request and that he should respond in 30 days to the correspondence selecting whether or not he still wished to appear for a Board hearing, he was also notified that that if a response was not received within 30 days, the Board would use his previous hearing selection. A response was not received from the Veteran and the Board will proceed without a hearing based on the Veteran’s selection in his May 2019 VA Form-9. The Veteran has claimed service connection for various psychiatric manifestations, including depression, anxiety, sleep disorder, and mood changes. As such, the Board has broadened the claim to service connection for an acquired psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). 1. Entitlement to service connection for pinguecula is remanded. The Veteran has reported right eye problems from pinguecula as a result of exposure to burn pits and toxins in the air while stationed in Iraq. See March 2018 correspondence. A May 1991service treatment record ( STR ) report of medical examination at enlistment indicated the Veteran had abnormal eyes, general upon clinical evaluation. To date, the Veteran has not been afforded a VA eye examination and should be scheduled on remand. 2. Entitlement to service connection for a left ankle disability is remanded. The Veteran has reported left ankle pain and swelling. See March 2018 correspondence. He has also reported that he lifted heavy equipment and had rigorous training in service while he was exposed to extreme weather in the Gulf War/Iraq. Id. The Veteran’s service personnel records reflect that the Veteran had service in support of Operation Iraqi Freedom and service in Kuwait/Iraq from May 2005 to May 2006. See Form DD-214. Moreover, he has asserted his joint condition is secondary to his back condition. See October 2016 VA Form 21-526EZ. To date, the Veteran has not been afforded a VA ankle examination and should be scheduled on remand. 3. Entitlement to service connection for loss of sensation in the left hand is remanded. 4. Entitlement to service connection for loss of sensation of the right hand is remanded. The Veteran has reported loss of sensation in his left and right hands. See March 2018 correspondence. The Veteran’s service personnel records reflect that the Veteran had service in support of Operation Iraqi Freedom and service in Kuwait/Iraq from May 2005 to May 2006. See Form DD-214. To date, the Veteran has not been afforded a VA examination for bilateral hands and should be scheduled on remand. 5. Entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran has reported psychiatric symptoms, including depression, anxiety, sleep disorder, and mood changes due to his deployment and participation in war as well as secondary to pain from his service-connected disabilities. See March 2018 correspondence and March 2018 statement in support of claim. The Veteran’s service personnel records reflect that the Veteran had service in support of Operation Iraqi Freedom and service in Kuwait/Iraq from May 2005 to May 2006. See Form DD-214. To date, the Veteran has not been afforded a VA psychiatric remand and should be scheduled on remand. 6. Entitlement to service connection for a left shoulder disability is remanded. The Veteran has a left shoulder disability, variously diagnosed as a left shoulder strain, impingement syndrome, rotator cuff tendonitis, and acromioclavicular joint osteoarthritis. See December 2018 and March 2019 VA examination reports. The Veteran asserts that his joint condition is secondary to his back condition. See October 2016 VA Form 21-526EZ. He has also reported that he lifted heavy equipment and had rigorous training in service while he was exposed to extreme weather in the Gulf War/Iraq. See March 2018 statement in support of claim. His service personnel records reflect that the Veteran had service in support of Operation Iraqi Freedom and service in Kuwait/Iraq from May 2005 to May 2006. Form DD-214. The March 2019 VA examiner opined that the shoulder conditions have known etiology and diagnoses and are not related to any environmental hazards. However, the examiner did not provide sufficient rationale for this determination and did not address whether the left shoulder disability is otherwise related to service, to include the Veteran’s reports that he lifted heavy equipment and had rigorous training. See March 2018 statement in support of claim. Moreover, the Veteran has asserted the left shoulder condition is secondary to his back condition, which is being remanded. Thus, the shoulder condition is also remanded. 7. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran has a currently diagnosed lumbar spondylosis/myositis and multilevel degenerative disc disease disability. See June 2017 VA examination report. He has reported that he lifted heavy equipment and had rigorous training in service while he was exposed to extreme weather in the Gulf War/Iraq. See March 2018 statement in support of claim. See October 2016 VA Form 21-526EZ. His service personnel records reflect that the Veteran had service in support of Operation Iraqi Freedom and service in Kuwait/Iraq from May 2005 to May 2006. See Form DD-214. The June 2017 VA examiner opined that the Veteran’s lumbar spondylosis/myositis and multilevel degenerative disc disease disability was less likely than not incurred in or caused by exposure to Guld/Southwest Asia environment and stated that there is no evidence in the medical literature linking exposure to Gulf environmental pollutants with the posterior development of lumbar spondylosis/myositis with multilevel degenerative disc disease. However, the examiner did not provide sufficient rationale for this determination and did not address whether the Veteran’s back disability is otherwise related to service, to include the Veteran’s reports that he lifted heavy equipment and had rigorous training in service while he was exposed to extreme weather in the Gulf War/Iraq. See March 2018 statement in support of claim. 8. Entitlement to a rating in excess of 10 percent for service-connected right knee degenerative arthritis based on limitation of extension is remanded. 9. Entitlement to a rating in excess of 10 percent for service-connected right knee degenerative arthritis based on limitation of flexion is remanded. The June 2017 and March 2019 VA knee examiners indicated that they were unable to say without resort to mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability due to flare ups of the knees because no positive flare-up episode was observed. As the examiners declined to offer an opinion as to additional functional loss during flare ups due to a lack of direct observation of function under those circumstances, the examinations are inadequate. Sharp v. Shulkin, 29 Vet. App. 26 (2017). This does not allow the Board to properly assess the functional impairment caused by the disabilities. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. Significantly, the Board notes that the November 2018 VA examiner indicated that the examination was not being conducted during a flare up and that range of motion during a flare-up could not be described in terms of range of motion. While the examiner stated that the Veteran does not have right knee ankylosis, the examiner also stated that at worst, the Veteran cannot move his knee at all due to pain, weakness, fatigue, and lack of endurance. As the examiner has raised the issue, remand is needed in order for the examiner to offer an opinion addressing whether the Veteran’s right knee is so limited in motion as to be effectively ankylosed and in what position. Remand for new VA knee examination is therefore required so that the Board can properly assess the Veteran’s level of functional impairment. The Board also notes that effective February 7, 2021, the Diagnostic Codes applicable to knee disabilities have changed. As pertinent to this issue, Diagnostic Code 5257 now requires additional evidence, such as type and treatment, to rate knee instability if such is present. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 20202) (to be codified at 4.71a, Diagnostic Code 5257). The examination should be conducted in such a way that it includes findings consistent with the new requirements of Diagnostic Code 5257. The matters are REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate them with the claims file. 2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any eye disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all eye disabilities present during the appeal period. (b.) For each eye disability diagnosed, whether there was clear and unmistakable evidence the condition did not undergo a permanent increase in disability beyond the natural progression of the disease or injury during active duty service? (c.) For each eye disability diagnosed, whether there was a permanent increase in disability beyond the natural progression of the disease or injury for any period of ACDUTRA? The examiner should address the May 1991 STR report of medical examination at enlistment that indicated the Veteran had abnormal eyes, general upon clinical evaluation and the examiner should address the Veteran’s reports of exposure to burn pits and toxins in the air while stationed in Iraq. 3. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any lumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all lumbar spine disabilities present during the appeal period. (b.) For each lumbar spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner should address the Veteran’s reports that his condition is due to lifting heavy equipment and rigorous training in service as well as being was exposed to extreme weather in the Gulf War/Iraq. 4. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left hand loss of sensation and right hand loss of sensation disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left hand loss of sensation and/or right hand loss of sensation disabilities present during the appeal period. (b.) For each left hand loss of sensation and/or right hand loss of sensation disabilities diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner should address the Veteran’s reports that his condition is due to lifting heavy equipment and rigorous training in service as well as being was exposed to extreme weather in the Gulf War/Iraq. 5. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left ankle disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left ankle disabilities present during the appeal period. (b.) For each left ankle disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner should address the Veteran’s reports that his condition is due to lifting heavy equipment and rigorous training in service as well as being was exposed to extreme weather in the Gulf War/Iraq. (c.) For each left ankle disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected back disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. 6. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left shoulder disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left shoulder disabilities present during the appeal. (b.) For each left shoulder disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner should address the Veteran’s reports that his condition is due to lifting heavy equipment and rigorous training in service as well as being was exposed to extreme weather in the Gulf War/Iraq. (c.) For each left shoulder disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by a service-connected back disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. 7. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any psychiatric disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all psychiatric disabilities present during the appeal period. For each psychiatric disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. (b.) For each psychiatric disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by a service-connected disability, to include pain from the disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner should address the Veteran’s reports that conditions is due to his deployment and participation in war as well as secondary to pain from his service-connected disabilities. 8. Schedule the Veteran for an appropriate VA examination with the November 2018 VA examiner (if possible) or another appropriate examiner to determine the current nature and severity of his right knee disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all right knee pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in 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. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The knee joints should also be tested for instability and any instability found should be noted, to include the type of instability and treatment received for the same, if any. Findings pertaining to knee instability should comply with the newly enacted Diagnostic Criteria 5257 effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 4.71a, Diagnostic Code 5257) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. The examiner should address the November 2018 VA examination report which indicated that at worst, the Veteran cannot move his right knee at all due to pain, weakness, fatigue and lack of endurance and the examiner should explain whether the Veteran’s right knee is so limited in motion as to be effectively ankylosed and in what position. See Diagnostic Code 5256. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 9. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.