Citation Nr: 21024272 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-08 824 DATE: April 22, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for a lumbosacral spine disability is remanded. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial disability rating in excess of 30 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for joint pain is remanded. Entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1989 to June 1992, January 2004 to March 2005, and January 2011 to October 2011. His active service includes deployments to Iraq and Kuwait. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection for a lumbosacral spine disability with an assigned 10 percent rating, right lower extremity radiculopathy with an assigned 10 percent rating, and GERD with an assigned 30 percent rating. The Veteran also appeals a May 2016 rating decision that denied service connection for a right shoulder disability, joint pain, and a neck disability. In his March 2015 and May 2017 substantive appeal, the Veteran requested to present sworn testimony before a Veterans Law Judge. In January 2021, the Veteran was issued notice that a Virtual Tele-hearing was scheduled for April 5, 2021. Included with this notice was comprehensive information regarding the rules governing rescheduling of the hearing and failure to report to the scheduled hearing. The Veteran failed to appear to his scheduled hearing. The Veteran has not contacted VA regarding rescheduling this hearing; the record does not demonstrate good cause to reschedule. If an appellant fails to appear for a scheduled hearing and a request for postponement has not been received the case will proceed as if the hearing request had been withdrawn. 38 C.F.R. § 20.702(d). A request for a hearing will not be granted unless the failure to appear was with good cause and under such circumstances that a request for postponement could not have been submitted. A request for a new hearing must be submitted not more than 15 days following the original hearing date. Id. The Veteran has not requested a new hearing. Accordingly, the hearing request is deemed withdrawn and the Board may proceed with appellate review. Id. 1. Entitlement to an initial disability rating in excess of 10 percent for a lumbosacral spine disability is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy is remanded. 3. Entitlement to an initial disability rating in excess of 30 percent for GERD is remanded. Relevant treatment records have been added to the evidentiary record since the issuance of the March 2015 SOC, including a new examination for the Veteran’s right lower extremity radiculopathy. As such, the issues regarding entitlement to increased ratings are remanded back for AOJ review of this additional evidence. Additionally, new VA examinations should be afforded to the Veteran to assess the current severity of his disabilities. The Veteran was last afforded a VA examination in January 2014 for his lumbosacral disability, in May 2016 for his right lower extremity radiculopathy, and August 2012 for his GERD. Since that time, there have been some indications that the conditions may have worsened. Since the examinations are too remote to be constitute a contemporaneous examination, a new examination is required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). The Board also notes that the August 2012 and January 2014 VA examination reports indicate that the Veteran has flare-ups in his lumbosacral spine. However, neither report estimated the range of motion loss during flare-ups, if any. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2019). As such, the VA examinations are inadequate for adjudicative purposes. 4. Entitlement to service connection for a right shoulder disability is remanded. 5. Entitlement to service connection for joint pain is remanded. 6. Entitlement to service connection for a neck disability is remanded. The Veteran contends that he has a right shoulder and neck disability that is generally related to service. See February 2015 VA Form 21-526. VA treatment records show that the Veteran has consistently complained of pain in his right shoulder and neck throughout the appellate period. The Board notes that pain alone can constitute a disability if it causes functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1364 (2018). As to the Veteran’s alleged joint pain, the Board notes that the Veteran’s complaints of joint pain in available treatment records are isolated to his knees, shoulder, neck, and lumbosacral spine. See VA treatment records and private medical records. The Veteran is service connected for a bilateral knee disability and a lumbosacral spine disability. Thus, his joint pain that is not currently service connected are related to his right shoulder and neck. The entitlement to service connection for joint pain is predicated in part on a qualifying chronic disability encompassing right shoulder pain, neck pain, and/or a relevant pain not currently in the evidentiary record. The Veteran has not been afforded VA examinations for any of his alleged disabilities. Further, there is insufficient competent evidence of record for the Board to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Therefore, the low evidentiary standard is met, and a VA examination is necessary to determine if the Veteran’s current alleged disabilities are related or attributable to his time on active duty. The Board observes that the Veteran has active service in Iraq and Kuwait. Thus, joint pain and muscle pain may indicate a qualifying chronic disability that warrants a presumption of service connection. See 38 C.F.R. § 3.317. In considering 38 C.F.R. § 3.317, the Board is mindful of the holding in Stewart v. Wilkie. In that case, the Court of Appeals for Veterans Claims (Court) held an illness is a medically unexplained chronic multisymptom illness (MUCMI) where either the etiology or pathophysiology of the illness is inconclusive as to the individual Veteran. See Stewart v. Wilkie, 30 Vet. App. 383, 390-92 (2018). Thus, on remand the AOJ should determine whether any of the Veteran’s alleged disabilities can constitute MUCMIs as to the individual Veteran. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his lumbosacral spine disability, right lower extremity radiculopathy, GERD, right shoulder disability, neck disability, and joint pain that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, schedule the Veteran for an appropriate examination to determine the current severity of his service-connected lumbosacral spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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 examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. 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. 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). 3. After #1 above has been completed, schedule the Veteran for examinations by appropriate examiners to determine the current severity of his service-connected right leg radiculopathy and GERD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 4. After #1 above has been completed, schedule the Veteran for an appropriate examination to determine the nature and etiology of his right shoulder pain, neck pain, and joint pain. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all right shoulder, neck, and joint disabilities present. For each identified disability, the examiner is asked to respond to the following inquiries: A. Is the etiology OR pathophysiology of the Veteran’s diagnosed disability not understood AT ALL as to the Veteran? B. If BOTH the etiology AND pathophysiology of the condition is understood AT ALL as to the Veteran, is it at least as likely as not that the diagnosed condition is attributable to service, to include painful joints endorsed post-deployment therein? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page)   If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.