Citation Nr: 21024171 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-24 744A DATE: April 22, 2021 REMANDED Entitlement to service connection for a right hip and leg disability is remanded. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the cervical spine is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right great toe is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1978 to October 1984 and in the United States Army from November 1986 to March 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2018 decision, the Board denied the Veteran’s claims for service connection for a right hip and leg disability and for an initial rating in excess of 20 percent for degenerative disc disease of the cervical spine. The Board also granted an initial rating of 10 percent for the Veteran’s degenerative joint disease of the right great toe but denied an initial rating in excess of 10 percent for this disability. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Memorandum Decision, the Court set aside and remanded the November 2018 Board decision. The Court explained that the November 2018 Board decision failed to provide an adequate statement of reasons or bases for denying the Veteran’s claims. The Board also notes that in a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for intervertebral disc syndrome, claimed as a bulging disc of the back. As this is considered a full grant of the issue of service connection sought on appeal, this issue is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for a right hip and leg disability In the July 2020 Memorandum Decision, the Court explained that because the November 2018 Board decision failed to sufficiently address the Veteran’s lay statements regarding his hip and leg disability symptoms since service, its statement of reasons or bases for denying the Veteran’s claim was inadequate. The Court also noted that the Board relied upon a 2013 VA opinion that was based upon the absence of medical documentation during service and did not consider the Veteran’s lay statements. To that end, and upon review of the record, the Board finds that a remand is warranted given the inadequate VA opinion of record. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, a June 2013 VA examiner found that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that muscle pain, which the Veteran reported during service, does not result in degenerative joint disease in the absence of an injury or a fracture and that the record is void of documentation of an injury, complaint, or treatment for a right hip condition. This opinion is inadequate because the VA examiner essentially based her negative nexus opinion on the lack of a diagnosis in service and failed to consider the Veteran’s lay statements, documented in the post-service treatment records, of right hip and leg pain in and since service. See Dalton v. Peake, 21 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Accordingly, the Board finds that a remand is warranted for another VA examination and opinion that provides adequate rationale and considers all the evidence of record. Additionally, the evidence of record reflects that the Veteran may also experience right hip and leg pain as a result of sciatica, neuropathy, and/or radiculopathy that is related to his service-connected lumbar spine disability. See March 2010 private treatment record (reflecting low back pain with right radiculopathy). As such, on remand, the VA examiner should also provide an opinion as to whether the Veteran has a right hip and leg disability that is secondary to his service-connected lumbar spine disability. 2. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the cervical spine At the outset, in the July 2020 Memorandum Decision, the Court found that the June 2013 VA examination, relied on by the Board in its November 2018 denial, did not contain passive range of motion testing as required under Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the Court noted that there was a discrepancy between the June 2013 examiner’s finding that the Veteran did not have functional loss and the Veteran’s reports that he experienced daily stiffness and pain on motion, and that the Board did not discuss these seemingly contradictory portions of the examination report. The Board reiterates that in Correia, the Court concluded that 38 C.F.R. § 4.59 requires VA examinations, whenever possible, to include joint testing for pain on both active and passive range of motion, as well as with weightbearing and non-weightbearing, and that if an examiner is unable to conduct the required testing or concludes that such is unnecessary, he or she should clearly explain why that it so. 28 Vet. App. at 158. Here, the June 2013 VA examination does not contain the required range of motion measurements nor did the VA examiner explain her failure to do so. Therefore, in compliance with the Memorandum Decision, the Board finds that a remand is warranted for a VA examination that complies with the provisions under Correia and accounts for the Veteran’s reported symptomatology in its findings. Additionally, as the Veteran has reported several symptoms that he believes are associated with his cervical spine disability, on remand, the examiner is also asked to provide an opinion clarifying the symptoms of his disability. 3. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right great toe In the July 2020 Memorandum Decision, the Court found that the Board provided an inadequate statement of reasons or bases in its November 2018 denial and did not explain why the evidence showing that the Veteran endorsed intermittent foot pain that impaired his ability to walk did not show a moderately severe foot injury. The Board notes that the Veteran was last afforded a VA foot examination in June 2013 and that the VA examiner did not specify whether the Veteran’s symptoms equated to a moderate, moderately severe, or severe level of disability. Additionally, in his June 2016 substantive appeal, the Veteran reported that his right foot has progressively worsened over the years. See June 2016 Form 9. VA’s duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when the Veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). To ensure that the record includes sufficient medical evidence to properly evaluate the disability under consideration, and in light of the Veteran’s assertions suggesting that his disability has worsened, the Board finds that a contemporaneous VA examination is warranted to assess the severity of the Veteran’s condition. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated June 2019. 2. Provide the Veteran with another opportunity to identify any outstanding private treatment records associated with his claims. After obtaining any necessary authorization from the Veteran, any outstanding treatment records should be obtained. 3. Then, schedule the Veteran for a VA examination from an appropriate medical professional to determine the nature and origin of the Veteran’s claimed right hip and leg disability. The claims file, to include a copy of this Remand, should be made available to and be thoroughly reviewed by the VA examiner. The examiner is asked to respond to the following: (a) Identify/diagnose all disabilities related to the Veteran’s claim for service connection for a right hip and leg disability. The examiner should consider the (1) March 2010 private treatment record noting that the Veteran has low back pain with right radiculopathy and sciatica; (2) March 2011 VA treatment record reflecting the Veteran had buttock pain, bursitis, and sciatica; (3) June 2013 VA hip examination diagnosing the Veteran with minimal degenerative joint disease; and (4) the November 2016 VA treatment record reflecting sciatic nerve pain. (b) For each disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such (1) had an onset in active service; (2) manifested within one year from discharge of either of the Veteran’s periods of active service; OR (3) is otherwise related to the Veteran’s periods of active service, to include the October 1978 service treatment record reflecting muscle pain and myalgia of the legs, shoulders, and back; and the November 1988 and March 1989 Report of Medical Histories where the Veteran reported having cramps in his legs. In providing the above opinions, the examiner must address the Veteran’s lay statements that he began to experience right hip pain in service and that he has continued to experience right hip pain since service. In this regard, an August 2001 VA treatment record reflects that the Veteran reported right hip pain since an injury in 1982 and that the pain had been increasing and the April 2005 VA spine examination reflects that the Veteran reported noticing a sudden onset of low back pain in 1982 while lifting weights and that the pain was both in the lower back and the right buttocks area. (c) For each disability, also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such is (1) caused by OR (2) aggravated by his service-connected lumbar spine disability In rendering his or her opinion the examiner should address BOTH the causation and aggravation questions in his or her rationale. In other words, even if the Veteran’s service-connected lumbar spine disability did not cause his right hip and leg disability, the examiner should still address whether his service-connected disability could have worsened his right hip and leg disability. If aggravation is found, the examiner should quantify the degree of aggravation, if possible and state whether there was an increase in disability regardless of permanence, but medically ascertainable.   The examiner is advised that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A complete rationale for all opinions requested must be provided. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical finding. 4. Schedule the Veteran for a VA examination to assess the severity of his service-connected degenerative disc disease of the cervical spine. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disability should be identified. The examiner should respond to the following: (a) The examiner MUST TEST the Veteran’s range of motion on active and passive motion, on weight-bearing and non-weight-bearing, if possible, and record the range of motion measurements. (b) If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. 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 so in the report. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran’s cervical spine disability. The examiner should 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, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his cervical spine and after repeated use over time. 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. (d) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner.   (e) The examiner, or another appropriate medical professional if necessary, is also asked to clarify the symptoms of the Veteran’s cervical spine disability. Specifically, opine whether the Veteran’s reported symptoms, including headaches, neuropathy, blurred vision, and/or sinus issues are at least as likely as not (50 percent probability or greater) a symptom of or a residual of his service-connected cervical spine disability or constitute a separate, unrelated disability. The examiner should consider the June 2013 VA examination where the Veteran reported that he experienced stiffness to the neck with occasional headaches as well as the November 2016 VA treatment record assessing the Veteran with ulnar neuropathy and noting the Veteran’s reports of intermittent headaches and neck pain. A rationale should be provided for all opinions expressed. 5. Schedule the Veteran for an updated VA examination with an appropriate medical professional to determine the current severity and manifestations of his service-connected degenerative joint disease of the right great toe. The entire claims file, to include a copy of this Remand, should be made available to and be reviewed by the VA examiner. All indicated testing should be accomplished and all symptomatology associated with the disabilities should be identified. The VA examiner should provide a full description of the disability and report all signs and symptoms necessary for rating the disability under the rating criteria.   The assessment should include a finding as to whether the overall severity of the disability is moderate, moderately severe, or severe. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. The examiner should provide a clear explanation for any conclusions reached. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, Associate 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.