Citation Nr: 21028315 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-59 162 DATE: May 11, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine (hereinafter lumbar spine disability) is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the cervical spine (hereinafter cervical spine disability) is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee (hereinafter right knee disability) is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee (hereinafter left knee disability) is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity (hereinafter left leg disability) is remanded. Entitlement to service connection for a neurological disability of the right lower extremity, to include radiculopathy and neuropathy, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1981 to November 1984. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 30 days for the submission of supporting evidence. VA subsequently received additional evidentiary submissions. The Board notes that the Veteran filed a claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected lumbar spine disability, cervical spine disability, bilateral knee disability, and left leg disability. See VA Form 21-8940 (July 2020). Although a TDIU claim would ordinarily be raised by the record as part and parcel of the increased rating claims pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board will not address entitlement to a TDIU in this decision as it is pending under the modernized review system, also known as the Appeals Modernization Act (AMA), and to address it again in this decision would be a waste of judicial resources. Further, at the Board hearing, the Veteran's representative indicated that he was actively pursuing the claim through the AMA. See Hearing Transcript at 3 (February 2021). Accordingly, since the Veteran has elected to have that issue decided through the modernized review system, the issue will not be considered in this decision. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a left shoulder disability is remanded. 3. Entitlement to service connection for a right hip disability is remanded. 4. Entitlement to service connection for a left hip disability is remanded. Issues 1-4. The Veteran, and his representative, contends that his bilateral shoulder and bilateral hip disabilities stem from service. In this regard, the Veteran maintains that his disabilities are related to in-service parachute jumps. Additionally, at the Board hearing, the Veteran testified to experiencing in-service falls/slipping, in which, he injured his shoulders. See Hearing Transcript 7-10 (February 2021). For reasons explained below, the Board finds that remand is necessary. VA medical opinions, dated in March 2017, reflect the following conclusions and supporting rationale: (1) The Veteran's right shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the opinion notes that the Veteran's "acromioclavicular joint osteoarthritis most closely correlates with his 28-year history of work as an aircraft mechanic, and there is no record of shoulder injury while in-service." (2) The Veteran's left shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the opinion, again, notes that the Veteran's left shoulder disability as likely stemming from his 28-year history as an aircraft mechanic and that his service treatment records (STRs) are silent for an in-service shoulder injury. (3) The Veteran's right hip disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the opinion notes that shoulder pain from shoulder strain "should have manifested itself while in-service if joint strains were secondary to parachute jumps" and no post-traumatic degenerative joint disease was seen on x-ray. (4) The Veteran's left hip disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the opinion noted that "greater trochanteric pain syndrome (his diagnosis today is based on pain with external rotation tenderness to palpation of the greater trochanter and negative x-ray) should have manifested symptoms while in-service if it was due to parachute jumps." The opinion further noted that there was no post-traumatic degenerative joint disease seen on x-ray. In this instance, the VA medical opinions are inadequate because the essential rationale for the opinions is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). For example, the opinion observes the Veteran's bilateral shoulder disability as likely stemming from his post-service career, however, the opinion does not reveal a reasoned rationale or medical explanation supporting the reached conclusion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("a medical opinion . . . must support its conclusion with analysis that the Board can consider and weigh against contrary opinions"). Indeed, at most, the Board is able to ascertain the opinions' medical findings and conclusions, however, the essential rationale connecting the medical findings to the conclusions is not discernable and the Board is not competent to substitute its own medical rationale for that of the opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Similarly, for the bilateral hip disability, the opinion notes that the Veteran's disability "should have manifested symptoms while in-service if it was due to parachute jumps," however, the opinion is absent a rationale supporting this conclusion. Given the above, the Board may not rely upon the VA medical opinions in their present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Next, the Board observes a private medical opinion, received by VA in September 2017. The medical opinion concluded that the Veteran's "conditions were aggravations of previous joint stresses that were directly related to his previous history as paratrooper." In support of this conclusion, the opinion noted that the Veteran "displays functional changes and structural limitations to movement in his shoulders, hips, knees, ankles that are typically only seen in chronic repetitive high impact activities." Here, the Board finds the private medical opinion inadequate to support the claims. A medical opinion is adequate where it is based upon consideration of a veteran's prior medical history, describes the disability in sufficient detail, and fully informs the Board of the medical expert's judgment on a medical question and the essential rationale for that opinion. Webb v. Wilkie, 32 Vet. App. 309, 314 (2020). Importantly, and relevant here, if an opinion is based on an inaccurate factual premise, it should be discounted entirely. Monzingo, 26 Vet. App. at 107. The opinion, in this case, does not describe the disabilities in sufficient detail to the extent that it informs the Board of the medical expert's judgment on the medical questions. Indeed, the opinion simply states that the Veteran's "conditions were aggravations of previous joint stresses," without adequate supporting rationale or explanation connecting the Veteran's service to his current disabilities. Lastly, the opinion does not reveal consideration of (1) the Veteran's 28-year history as an aircraft mechanic; or (2) the service separation examination report, in which, the Veteran was evaluated as, essentially, having a clinically normal musculoskeletal and skeletal system, without mention as to having a defect to the shoulder or hip area. See STR (September 1984). Accordingly, as the opinion is not shown to be based on an accurate factual basis, the Board finds it inadequate to support the claims. Nevertheless, since the VA medical opinions of record are inadequate, remand is necessary. Barr, 21 Vet. App. at 311. 5. Entitlement to a rating in excess of 20 percent for lumbar spine disability is remanded. 6. Entitlement to a rating in excess of 10 percent for cervical spine disability is remanded. 7. Entitlement to a rating in excess of 10 percent for right knee disability is remanded. 8. Entitlement to a rating in excess of 10 percent for left knee disability is remanded. 9. Entitlement to a rating in excess of 10 percent for left leg disability is remanded. Issues 5-9. The Veteran, and his representative, contends that a higher evaluation is warranted for his service-connected disabilities. The Board finds that remand is necessary. First, the Board observes that at the Board hearing, the Veteran testified to a worsening of symptoms since his last VA examination. See Hearing Transcript at 18 (February 2021). Indeed, he stated that his service-connected disabilities had worsen since his last VA examinations. Id. While the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Here, the Veteran testified to an increased severity of symptoms associated with his disabilities since his last VA examinations. See generally Hearing Transcript (February 2021) (detailing and exemplifying an increase in severity and frequency of symptoms associated with service-connected disabilities). Given the competent evidence of worsened symptoms since the last VA examinations, a remand is necessary to adequately evaluate the current severity of the Veteran's service-connected disabilities. Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). Therefore, new VA examinations are needed to assist in determining the current severity of the Veteran's service-connected disabilities. Snuffer, 10 Vet. App. at 400. Next, the record reflects that the Veteran underwent VA examinations for his lumbar spine, cervical spine, and bilateral knee disabilities in December 2016, May 2017, July 2019, and in August 2020. The Board has reviewed those examination reports and finds that they are not adequate. The VA examination reports are inadequate for rating purposes because they are not shown to be in compliance with the Court's ruling in Correia v. McDonald, 28 Vet. App. 158 (2016). While some of the examination reports show that the examiner did answer questions as to pain with weightbearing and non-weightbearing and passive range of motion (ROM), the examiner did not provide adequate explanations or rationale for the answers and did not provide specific values for active or passive ROM testing, weight-bearing or non-weight-bearing. Moreover, the December 2016, July 2019, and August 2020 VA examination reports show that the Veteran reported flare-ups of his lumbar spine, cervical spine, and bilateral knee disability, when a flare-up was not observable at the time of examination. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Id. at 34. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). In this instance, the December 2016, July 2019, and August 2020 examinations were not conducted during a period of flare-ups and the Veteran reported experiencing flares; although the examination reports show that the examiners, to some extent, inquired as to the severity, frequency, and duration of the flares, they do not reveal any meaningful estimate of the additional functional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. It is noted that for the May 2017 examinations, the Veteran did not report experiencing flares of the lumbar spine, cervical spine, or knees. See Sharp, 29 Vet. App. 26. Therefore, given the above, remand is required for retrospective findings that fully satisfy the requirements of Sharp and Correia. See Barr, 21 Vet. App. 303; see also Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past); Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The Board notes that the Veteran submitted a February 2021 private examination report. The examination report, however, is inadequate as it is not shown to be in compliance with Sharp and Correia. Indeed, the report of examination does not reveal results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. Further, although the examination report notes the reports of flares, it is absent of any meaningful estimate of the additional functional impairment due to flare-ups. In this regard, the report of examination does not indicate that the examination was conducted during a period in which a flare was present for any of the disabilities. Thus, the Board finds the private examination report inadequate to support the claims as it is not shown to be in compliance with Sharp and Correia. 10. Entitlement to service connection for a neurological disability of the right lower extremity, to include radiculopathy and neuropathy, is remanded. For his neurological disability of the right lower extremity, the Veteran argues that it is secondary to his service-connected lumbar spine disability. See VA Form 21-526EZ (November 2016). The Board finds the Veteran's claim is inextricably intertwined with the claim of entitlement to a rating in excess of 20 percent for lumbar spine disability. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, adjudication is deferred pending the outcome of the claim. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms involving his spine, shoulders, hips, knees, and neurological disabilities, to include from Spine & Sports Rehab. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records dated from March 2021 to the Present. 3. Schedule the Veteran for an examination(s) by an appropriate clinician(s) to determine the nature and etiology of any (1) bilateral shoulder disability and (2) bilateral hip disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician(s). Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any of the above disabilities. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). Note (1): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. Note (2): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. The clinician must opine on: (a) Whether any bilateral shoulder disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address (1) the Veteran's theory that his disability stems from in-service parachute jumps and/or in-service falls/slipping, in which, he injured his shoulders, and (2) the private medical opinion, received by VA in September 2017. Explain. (b) Whether any bilateral hip disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address (1) the Veteran's theory that his disability stems from in-service parachute jumps and (2) the private medical opinion, received by VA in September 2017. Explain. 4. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected (1) lumbar spine disability, (2) cervical spine disability, and (3) bilateral knee disability. 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. As to the below, if it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (a) Test the Veteran's active motion, and passive motion, with weight-bearing and without weight-bearing. Note: The examiner should determine the effective range of motion (ROM) for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED ROM TESTS. If any of these findings are not possible, please provide an explanation. (b) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Note: If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced ROM during flares or repetitive use. Neurological Disability of the Right Lower Extremity (c) For neurological disability of the right lower extremity, opine on whether it is at least as likely as not the Veteran has, or has had, a neurological disability of the right lower extremity, to include radiculopathy and neuropathy, at any time during the pendency of the claim or recent to the filing of the claim. Explain. (d) If so, whether the Veteran's neurological disability of the right lower extremity is at least as likely as not (1) proximately due to service-connected lumbar spine disability, or (2) aggravated beyond its natural progression by service-connected lumbar spine disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Retrospective Findings Following a review of the record, the clinician should provide retrospective findings for the below identified past examinations. If it is not possible to provide a specific measurement without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). Lumbar Spine Disability (e) Provide an addendum retrospective opinion for the Veteran's service-connected lumbar spine disability to supplement the August 2020 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (f) Provide an addendum retrospective opinion for the Veteran's service-connected lumbar spine disability to supplement the July 2019 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (g) Provide an addendum retrospective opinion for the Veteran's service-connected lumbar spine disability to supplement the May 2017 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (h) Provide an addendum retrospective opinion for the Veteran's service-connected lumbar spine disability to supplement the December 2016 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. Cervical Spine Disability (i) Provide an addendum retrospective opinion for the Veteran's service-connected cervical spine disability to supplement the August 2020 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (j) Provide an addendum retrospective opinion for the Veteran's service-connected cervical spine disability to supplement the July 2019 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (k) Provide an addendum retrospective opinion for the Veteran's service-connected cervical spine disability to supplement the May 2017 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (l) Provide an addendum retrospective opinion for the Veteran's service-connected cervical spine disability to supplement the December 2016 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. Bilateral Knee Disability (m) Provide an addendum retrospective opinion for the Veteran's service-connected bilateral knee disability to supplement the August 2020 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (n) Provide an addendum retrospective opinion for the Veteran's service-connected bilateral knee disability to supplement the May 2017 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (o) Provide an addendum retrospective opinion for the Veteran's service-connected bilateral knee disability to supplement the December 2016 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.