Citation Nr: 21023899 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-45 110 DATE: April 21, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for left ankle disability, status post-ORIF, is remanded. Entitlement to an initial rating for low back disorder higher than 10 percent prior to February 9, 2021, and higher than 20 percent from that date forward is remanded. Entitlement to service connection for skin disorder is remanded. Entitlement to service connection for left knee disorder, including as due to service-connected left ankle disability, is remanded. Entitlement to service connection for headaches is remanded. REASONS FOR REMAND On initial review of this case, the Board deems additional development necessary prior to adjudication. The undersigned Veterans Law Judge held the record of the Veteran’s virtual Board hearing open for receipt of additional evidence, which was received. See 09/01/2020 Hearing Transcript, P. 20. 1. Entitlement to an initial rating higher than 10 percent for left ankle disability, status post-ORIF, is remanded. The initial examination report reflects either an ambiguity or an omission. The nurse practitioner (NP) examiner indicated that range of motion (ROM) repetitive-use testing was the same as initial ROM testing, but she also noted that there was additional loss of ROM on repetitive-use testing, and that there was additional loss of ROM due to repeat use over time. See 02/10/2014 CAPRI, P. 12-18, 15. She did not specify the additional loss or ROM in terms of degrees. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Neither was there an indication that passive ROM testing was conducted. See Correia v. McDonald, 28 Vet. App. 158 (2016). An examination was also conducted in 2018 by a physician. See 10/29/2018 C&P Exam, 2nd Entry. The examination report reflects that the Veteran denied having experienced flare-ups, but he reported functional loss due to repeat use over time. The examiner, however, noted that he did not provide a Sharp assessment of estimated additional loss of ROM in degrees because, not having observed the Veteran during repeat use over time, the assessment would have been based on speculation. Id. P. 6-7. The Board notes that, in Sharp, the Court of Appeals for Veterans Claims (Court) specifically rejected that reason as an adequate rationale for not providing the estimate. Another examination was conducted in January 2021. See 01/17/2021 C&P Exam, 3rd Entry. Since the 2018 and the 2021 examinations were conducted after the Agency of Original Jurisdiction (AOJ) certified the appeal to the Board, no supplemental statement of the case (SSOC) was issued. Further, the Board notes that the Schedular Rating Criteria for the Musculoskeletal System were revised, effective February 7, 2021. See 85 Fed. Reg. 76,453 et seq (Nov. 30, 2020). Beginning on that date, the Veteran is entitled to the benefit of which ever version of the rating criteria is most favorable. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board notes further that the Veteran’s outpatient records now note traumatic arthritis in the left ankle and also notes that the revised criteria have a different provision for that pathology. See id. P. 74,460 (Revised Diagnostic Code 5210). The Veteran has not been apprised of the new criteria. That will be the responsibility of the AOJ. Concerning the post-traumatic arthritis, there are entries that note that it is due to a 2011 ORIF that repaired a fracture sustained in an MVA that same year. A medical examiner must identify the left ankle symptomatology that is due to the service-connected disability and that which is not. 2. Entitlement to an initial rating for low back disorder higher than 10 percent prior to February 9, 2021, and higher than 20 percent from that date forward is remanded. The discussion above is incorporated here by reference. The same NP who conducted the 2014 left ankle examination conducted the back examination. See 02/10/2014 CAPRI, P. 5-12. The NP noted that the Veteran had additional LOM due to pain on flare-ups, and in the next sentence, that “he demonstrates ROM 0-60 degrees flexion….” (Emphasis added). Id. P. 6, 8. The examiner noted further that the Veteran’s ROM on examination was normal, without weakness, incoordination, or fatigability. The NP’s notations and the values she checked on repetitive-use testing contradict each other. The Board reads “demonstrates” to me that the NP conducted a test, versus the Veteran having reported such. The AOJ did not seek clarification. The difference is significant, as forward flexion no greater than 60 degrees due to functional loss due to flare-ups would have warranted an initial rating of 20 percent. See 38 C.F.R. § 4.71a, General Formula for Diseases and Injuries to the Spine; see also Sharp, 29 Vet. App. 26; DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995); 38 C.F.R. §§ 4.40, 4.45. Moreover, while the examiner noted that the Veteran did experience additional limitation of motion on repeat use, the examination results do not show such change. Thus, the reliability of the examination results overall appears to be questionable. The examiner who conducted the 2018 examination did not provide a Sharp assessment. 3. Entitlement to service connection for skin disorder is remanded. The 2014 examination report (04/12/2014 CAPRI) indicates that the Veteran reported a persistent rash on his left hand, and that he had seen private providers as well as VA for treatment of a rash that comes and goes. Physical examination revealed a diffuse erythematous rash to left hand; bilateral lower extremities; bilateral forearms with scattered hypopigmented plaques. Id. P. 3. First, the Board notes that there are no indications in the claims file that any private treatment records were ever sought; only a few scattered private records are in the file, primarily addressing other medical issues. Second, and lastly, the examiner rendered a negative nexus opinion because there was no record of ongoing treatment for a rash to the left hand and because the Veteran’s private provider was treating him for a skin condition at the leg and elbow which was not consistent with contact dermatitis. Id. P. 5. In the service treatment records (STRs), however, an April 1997 entry notes the Veteran’s complaints of an intermittent rash involving his waist, ear, and hands times 1 week. In August 1997, he complained of a rash on his stomach and knees. See 07/11/2000 STR-MED, P. 71, 76. Hence, clarification of the nexus opinion is needed. Further, while his appeal was pending, the Veteran has also asserted that his skin disorder is due to his exposure to toxins while assigned to Ft. McClellan, AL. He has also asserted his claimed exposure as a basis for his headaches claim. 3. Entitlement to service connection for left knee disorder, including as due to service-connected left ankle disability, remanded. The Veteran was not afforded an examination of the left knee prior to the adjudication of this claim. Although examinations of the knees were conducted subsequently, there is no record of a medical nexus opinion on the left knee, only of the right knee. See 12/19/2015 C&P Exam, 4th Entry, P. 2. However, the right knee is not at issue in this decision. The Veteran asserted in his NOD that his left knee disorder was due to the physical demands of his in-service duties. See 09/15/2014 NOD, 1st Entry. At the Board hearing he asserted that it was impacted by his left ankle disability. See Hearing Transcript, P. 15. The Board finds that a medical nexus opinion has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 4. Entitlement to service connection for headaches is remanded. The Board finds an examination is required for the Veteran’s headache claim as well, as no opinion has been rendered as to whether the Veteran’s currently diagnosed headaches is causally connected to his claimed exposure to toxic substances while at Ft. McClellan, AL. The matters are REMANDED for the following action: 1. The AOJ shall obtain all of the Veteran’s military personnel records (MPR) extant and add them to the claims file. Obtain the identity of all non-VA providers who have treated the Veteran for any of his disabilities. After obtaining the necessary releases, obtain all records extant. Document all efforts to obtain the noted records. Obtain all VA treatment records, to include those for referred chiropractic treatment, generated since January 2021 and add them to the claims file. 2. Next, the AOJ should issue a formal finding as to whether the Veteran was exposed to toxic substances while at Ft. McClellan, AL from 1997 to 1998. 3. After the above is complete, regardless of whether additional records are obtained, ascertain if the NP who conducted the 2014 left ankle and back examinations is still available. If so, direct her attention to the 2014 examination reports and ask her to review her notes of the examinations and to clarify the contradictions noted earlier. Specifically, did she actually conduct a repetitive-use test where the Veteran’s back manifested ROM of 0 to 60 degrees? If the NP is no longer available, document that fact, and no further action is directed as concerns the 2014 examinations. Next, send the claims file to the examiner who conducted the 2018 left ankle and back examinations. Inform the examiner that the Court in Sharp was fully aware that, in most instances, examiners would not have the opportunity to observe a claimant during a flare-up or during repeat use over time. Hence, the Court directed that examiners consider the claimant’s reported history and symptoms, and the findings on examination, then give rating authorities the examiner’s best estimate. For the purposes of VA compensation claims, it is not speculation to provide an estimate based on reported history and the objective findings on clinical examination. Reduced to a common colloquialism, in this instance, the Court is asking for an examiner’s “best shot,” given the information at hand. Ask the examiner to review the examination reports and his notes and then, in terms of degrees, based on the Veteran’s reported symptoms; his descriptions of his flare-ups and functional loss due to repeat use over time as concerns his back, and his functional loss due to repeat use over time as concerns his left ankle; and, the noted objective findings on examination, provide his best estimate of what the Veteran’s additional loss of ROM would be due to his flare-ups and repeat use over time. The Board fully understands the constraints the clinician is asked to work within but asks the clinician to provide his best estimate. The clinician may express his degree of confidence in his response on a 1-5 scale, with 5 being the most confident and 1 being the least. The examiner is also asked to identify the left ankle symptomatology that is due to the service-connected chronic strain, and that which is due to the post-service fracture and ORIF. If the symptoms of each cannot be identified or distinguished, please note that fact. 4. Arrange a review of the claims file by an appropriate clinician and ask that he/she opine whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s currently diagnosed left knee disorder had onset in active service or is otherwise causally connected to active service? If the answer is no, then is it at least as likely as not that it is due to the service-connected left ankle disability? If it is not due to the left ankle disability, then is it at least as likely as not that the service-connected left ankle disability worsens the left knee disorder? Inform the clinician that any worsening need not be chronic or permanent. Instead, any impairment in earning capacity due to flare-ups of the left knee caused by the left ankle is sufficient for a positive nexus. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation. A full explanation must be provided for all opinions rendered. 5. Ask an appropriate clinician to review the claims file and then opine whether it is at least as likely as not that the Veteran’s currently diagnosed skin disorder is causally related to Veteran’s complaints documented in the STRs. If the answer is, no, and the AOJ determines that the Veteran was in fact exposed to toxic substances while at Ft. McClellan, AL, then is it as likely as not that the Veteran’s currently diagnosed skin disorder is causally related to such exposure? A full explanation must be provided for all opinions rendered. 6. Ask an appropriate clinician to opine whether it is at least as likely as not that the Veteran’s currently diagnosed headaches is causally related to his claimed exposure to toxic substances while at Ft. McClellan, AL, if the AOJ determines that he was in fact exposed. A full explanation must be provided for all opinions rendered. 7. The AOJ shall ensure that the Veteran is apprised of the revised rating criteria for musculoskeletal disabilities. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.