Citation Nr: 21030140 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-13 580 DATE: May 17, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease, lumbar spine, is remanded. Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2006 to May 2013. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for degenerative disc disease, lumbar spine (claimed as lower back injury with sciatica) with a 10 percent evaluation effective May 11, 2013 and denied service connection for left shoulder numbness with loss of motion. In May 2019, the Board denied an evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine and service connection for a left shoulder disability. The Veteran appealed the May 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Order, the Court granted a Joint Motion for Remand (JMR) filed by the parties to vacate and remand the portion of the May 2019 Board decision denying entitlement to an evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine and service connection for a left shoulder disability. The Board remanded the issues again in October 2020 for further development consistent with the April 2020 Court Order. While the Board regrets the additional delay, further development is required before the Board may address the issues on the merits. 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease, lumbar spine, is remanded. Regarding the evaluation of degenerative disc disease of the lumbar spine, in the JMR, the parties agreed that the Board erred when it relied on an inadequate examination. Specifically, for an examination of the musculoskeletal system to be adequate under 38 C.F.R. § 4.40, the medical examiner "must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In this case, the Veteran reported flare-ups during VA examinations in February 2014 and July 2018, but the 2014 examiner explained that "additional limitation cannot be estimated due to the veteran's inability to replicate a flare-up during the exam," and similarly, the 2018 VA examiner opined that a flare-up was "[n]ot observed during this exam" and thus such an opinion could not be prepared without mere speculation. Therefore, the parties found that an additional VA examination was needed. See Sharp v. Shulkin, 29 Vet. App.26, 33-35 (2017). The parties also noted that the Board must adequately address whether functional loss, to include during a flare-up, supports a higher rating. Therefore, in October 2020, the Board remanded the issue for an addendum opinion. The examiner was specifically instructed to discuss any functional impairment that occurs during flare-ups, including estimating any additional loss of motion. Further, the VA examiner was instructed to comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or non-weight-bearing and during flare-ups can be estimated for the other VA examinations conducted during the appeal period in July 2018 and February 2014. In a November 2020 addendum opinion, the clinician stated that degenerative disc disease is a degenerative process and not an inflammatory process and constant pain is a known symptom. He stated that if flare-ups are noted, they are subjective and not consistent with degenerative process. He indicated that for the present examination as well as the July 2018 VA examination, range of motion would be subjectively reported by the Veteran and thus, based on mere speculation. No further rationale or explanation was provided. The Board finds the November 2020 addendum opinion to be inadequate as it fails to provide sufficient reasons and bases to support the clinician's conclusions. Although the clinician opined that flare-ups and estimated range of motion measurements would be speculative, there was no discussion regarding any reported or observed functional loss or reconciliation of previous reports of flare-ups. Specifically, the Board remand instructed the clinician that "[b]efore an examiner can conclude that such estimates cannot be provided without resorting to speculation, the examiner must elicit and consider information regarding functional loss of flare-ups." The Board finds that the clinician failed to consider any such information or provide any explanation for his statements. As such, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing these deficiencies. 2. Entitlement to service connection for a left shoulder disability is remanded. Regarding service connection for a left shoulder disorder, the parties to the JMR agreed that VA must consider whether the Veteran's undiagnosed left shoulder pain constitutes a disability. The Federal Circuit has held that pain alone that amounts toa functional impairment could establish a current disability. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). The Veteran has consistently reported pain from his neck and left shoulder. A February 2014 VA examiner found no objective evidence to support a diagnosis. A July 2018 VA examiner wrote that based on the data available, he was unable to give an informed opinion without resorting to mere speculation. A March 2020 VA examiner found no history of cervical spine disease, but did find the continuous ongoing neck pain and discomfort was at least as likely as not from service. However, she did not remark on the shoulder itself. Therefore, in its October 2020 decision, the Board remanded the issue for an addendum opinion addressing the nature and etiology of any left shoulder disability. The examiner was specifically instructed to identify any current left shoulder disorder, i.e. since approximately June 2013 when the Veteran filed his claim, or whether the Veteran's left shoulder pain causes functional impairment in earning capacity. For each diagnosis or any condition that results in functional impairment in earning capacity, the clinician was instructed to opine as to whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran's military service, to include any symptomatology therein, or whether any condition causing functional impairment is either caused or aggravated by the Veteran's service-connected cervical spine disorder. In the November 2020 addendum opinion, the clinician stated that there is no objective medical record evidence of a left shoulder condition and no diagnosis of a left shoulder condition. He further stated that if there is no left shoulder condition, there would be no functional limitation due to left shoulder and aggravation by the Veteran's cervical spine disorder is not indicated. No further rationale or explanation was provided. The Board finds the November 2020 addendum opinion to be inadequate as it fails to provide sufficient reasons and bases to support the clinician's conclusions. Of importance, the examiner opined that the Veteran had no left shoulder diagnosis but failed to state whether the Veteran's reported left shoulder pain causes functional impairment in earning capacity as required by Saunders. As such, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing these deficiencies. Moreover, the Board notes that in an August 2020 rating decision, the Veteran was granted service connection for radiculopathy of the left upper extremity as related to his service-connected cervical spine disorder. Thus, the Board finds that a clarifying opinion is necessary to determine if there are separate and distinct symptoms of any left shoulder disability that can be differentiated from those associated with his cervical spine disorder and the left upper extremity radiculopathy associated with that disorder. The matters are REMANDED for the following action: 1. Send the Veteran's claims file to a suitably qualified VA examiner for an opinion as to the severity of the Veteran's service-connected degenerative disc disease of the lumbar spine during flare-ups. An additional physical examination should be performed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology and experiencing flare-ups. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should discuss any functional impairment that occurs during reported flare-ups, including estimating any additional limitation of motion. To the extent possible, he or she should address the frequency, duration, characteristics, and severity of flare-ups (through an examination, review of the medical records, and/or history provided by the Veteran). If examination results provided during a flare-up are unavailable, and the examiner cannot otherwise opine as to functional loss, he or she must provide an explanation. If feasible, the examiner should portray such determinations "in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Before an examiner can conclude that such estimates cannot be provided without resorting to speculation, the examiner must elicit and consider information regarding functional loss during flare-ups. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or non-weight-bearing and during flare-ups can be estimated for the other VA examinations conducted during the appeal period in July 2018 and February 2014. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. The examiner must provide a clear rationale for all opinions and a discussion of the facts and medical principles involved. All prior reports should be addressed and/or reconciled as necessary. 2. Send the Veteran's claims file to a suitably qualified VA examiner for an opinion as to the nature and etiology any current left shoulder disability. An additional physical examination should be performed only if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, personnel records, post-service medical records, written statements, and this Board remand. It should be noted that the Veteran is competent to attest to factual matters of which he has 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. The examiner should identify any current left shoulder disability, i.e. since approximately June 2013 when the Veteran filed his claim. If there is no diagnosis, the clinician should indicate whether the Veteran's left shoulder pain causes functional impairment in earning capacity. The examiner is advised that s/he must provide an opinion as to any functional impairment due to pain regardless of whether the Veteran has a formal diagnosis for any shoulder condition. The examiner should specifically indicate if there are separate and distinct symptoms of any left shoulder disability that can be differentiated from those associated with the Veteran's cervical spine disorder and the left upper extremity radiculopathy associated with that disorder. For each diagnosis or any condition that results in functional impairment in earning capacity, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran's military service, to include any symptomatology therein. The examiner should also state whether any condition causing functional impairment is either (a) caused or (b) aggravated by the Veteran's service-connected cervical spine disorder. The examiner must provide a clear rationale for all opinions and a discussion of the facts and medical principles involved. All prior reports should be addressed and/or reconciled as necessary. 3. After the development requested has been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, corrective procedures should be implemented. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.