Citation Nr: 21030411 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 03-01 854 DATE: May 18, 2021 REMANDED Entitlement to service connection for a gastrointestinal disability is remanded. Entitlement to a rating in excess of 10 percent for left knee chondromalacia with patellofemoral pain is remanded. Entitlement to a rating in excess of 10 percent for right knee chondromalacia with patellofemoral pain is remanded. Entitlement to an initial rating in excess of 40 percent from July 16, 1999, through September 22, 2002, for a low back disability is remanded. Entitlement to a rating in excess of 20 percent from September 22, 2002, through March 7, 2010, for a low back disability is remanded. Entitlement to a rating in excess of 40 percent from March 8, 2010, for a low back disability is remanded. Entitlement to a rating in excess of 20 percent for lumbar radiculopathy of the left lower extremity is remanded. Entitlement to a rating in excess of 20 percent for lumbar radiculopathy of the right lower extremity is remanded. Entitlement to an effective date prior to March 9, 2016, for the award of a 20 percent rating for lumbar radiculopathy of the left lower extremity is remanded. Entitlement to an effective date prior to March 9, 2016, for the award of a 20 percent rating for lumbar radiculopathy of the right lower extremity is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from November 1994 to July 1999. The increased initial low back disability rating claim, associated evaluation and effective date lower extremity claims, and TDIU claim are before the Board of Veterans' Appeals (Board) by memorandum decision of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in July 2016, which vacated a November 2014 Board decision and remanded these issues for additional development. The case was also before the Court in May 2008 and March 2011. The low back disability issue initially arose from a September 1999 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were remanded by the Board for additional development in April 2017 and January 2018. The gastrointestinal service connection claim was remanded by the Board in January 2018. This issue initially arose from an August 2014 rating decision. The increased knee disability rating claims are before the Board by order of the Court in October 2020, which granted a joint motion for partial remand (JMPR) vacating, in part, a December 2019 Board decision and remanding the issues for additional development. The matters initially arose from an April 2017 rating decision. 1. Entitlement to service connection for a gastrointestinal disability is remanded. Although this matter was previously remanded, the Board finds that additional development is required for an adequate determination. The evidence of record includes a May 2014 VA medical opinion noting diagnoses of gastroesophageal reflux disease (GERD) and probable irritable bowel syndrome (IBS) but finding it was less likely due to or the result of a service-connected condition. It was noted that diclofenac and other non-steroidal anti-inflammatory drugs (NSAIDs) were not likely to have "permanently" aggravated the Veteran's GERD. An April 2019 VA medical opinion also provided negative nexus opinions apparently based upon the permanent worsening standard. The Board notes that the Court in Ward v. Wilkie, 31 Vet. App. 233, 239 (2019), found that compensation may be established for any incremental increase in disabilityany additional impairment of earning capacityin nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increaseregardless of its permanence. VA regulations provide that service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). As the available medical opinions in this case appear to have been based upon a definition of the term aggravation that is not appropriate under applicable law, an additional VA medical opinion is required. 2. Entitlement to a rating in excess of 10 percent for left knee chondromalacia with patellofemoral pain is remanded. 3. Entitlement to a rating in excess of 10 percent for right knee chondromalacia with patellofemoral pain is remanded. The October 2020 JMPR, citing Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), found the Board had not adequately addressed a February 2017 VA examiner's findings that he was unable to offer non-speculative opinions regarding the functional loss of each knee after repeated use over a period of time. In Sharp, the Court held that an examiner's statement that an opinion could not be offered without resort to mere speculation is competent only if it is determined that it is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. The Veteran submitted a subsequent statement in January 2021 reporting that his knee disabilities had worsened in severity since the 2017 examination. Therefore, the Board finds that an additional VA examination is required as to these matters prior to appellate review. 4. Entitlement to an initial rating in excess of 40 percent from July 16, 1999, through September 22, 2002, for a low back disability is remanded. 5. Entitlement to a rating in excess of 20 percent from September 22, 2002, through March 7, 2010, for a low back disability is remanded. 6. Entitlement to a rating in excess of 40 percent from March 8, 2010, for a low back disability is remanded. 7. Entitlement to a rating in excess of 20 percent for lumbar radiculopathy of the left lower extremity is remanded. 8. Entitlement to a rating in excess of 20 percent for lumbar radiculopathy of the right lower extremity is remanded. 9. Entitlement to an effective date prior to March 9, 2016, for the award of a 20 percent rating for lumbar radiculopathy of the left lower extremity is remanded. 10. Entitlement to an effective date prior to March 9, 2016, for the award of a 20 percent rating for lumbar radiculopathy of the right lower extremity is remanded. 11. Entitlement to a TDIU is remanded. The Board notes that the claims for increased initial low back disability ratings, evaluations and effective dates for left and right lower extremity disabilities, and a TDIU involve complex factual and medical matters and that pertinent VA regulations have been revised during the course of the appeal. These issues were last remanded by the Board in January 2018 with specific instructions for VA examination(s) including to assess the current severity and manifestations of the Veteran's lumbar spine disability and for a retrospective opinion as to whether the disability, at any time since July 1999, had been manifested by pronounced Intervertebral Disc Syndrome (IVDS);with persistent symptoms compatible with sciatic neuropathy; with characteristic pain and demonstrable muscle spasm; absent ankle jerk; or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. The Court has held that a remand confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Although a VA examination was conducted in July 2019 and an addendum opinion was provided in February 2020, the Board finds the examiner did not address pertinent questions requested in the January 2018 remand. It is noted that the examiner found there was pain on passive range of motion testing and when the joint was used in non-weight bearing, but no range of motion test findings were reported. The examiner also stated, without explanation, that additional loss of function or motion opinions based upon repetitive use or during a flare-up could not be provided without resorting to speculation. The statement that there was "no basis to offer" such opinions did not clearly explain why that is so as required by the prior remand. The examiner's February 2020 addendum response that "Intervertebral disc syndrome" is no longer a recognized diagnosis with an International Classification of Disease (ICD) code, that the definition of IVDS on the VA questionnaire is redundant and outdated, and that bed rest is no longer prescribed as a treatment for low back pain is similarly found to be insufficient to address the opinions required in this case. The Board notes that a subsequent June 2020 statement in support of the claims, among other things, asserted that a 60 percent for IVDS was warranted from July 16, 1999, and that a separate rating was warranted for bowel and bladder impairment. It was noted that during a February 2005 VA examination the Veteran reported an urge to defecate and urinate and that, while the examiner did not find incontinence, the back disability "nonetheless produces these subjective sensations." The Board finds additional development is required for adequate determinations. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has a gastrointestinal disability, currently or for any identifiable period since February 18, 2014, that: a. is at least as likely as not related to active service. b. is proximately due to a service-connected disability(ies) or symptoms or treatment/medications related thereto. c. underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability(ies) or symptoms or treatment/medications related thereto. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. Any additional examinations or testing necessary for an adequate opinion should be conducted. A complete rationale for the opinions must be provided. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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 that the examiner does not have the requisite knowledge or training to provide such opinions. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 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 that the examiner does not have the requisite knowledge or training to provide such opinions. 3. Schedule the Veteran for a VA examination(s) to ascertain: a) the current severity and manifestations of the Veteran's service-connected lumbar spine disability, and b) whether the Veteran's lumbar spine disability, at any time since July 1999, has been manifested by pronounced Intervertebral Disc Syndrome; with persistent symptoms compatible with sciatic neuropathy; with characteristic pain and demonstrable muscle spasm; absent ankle jerk; or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. (The examiner should note imaging results and physical examination results in support of his or her opinion). In addressing the current severity of the disability, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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 that the examiner does not have the requisite knowledge or training to provide such opinions. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 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 that the examiner does not have the requisite knowledge or training to provide such opinions. The examiner is asked to describe, if possible, whether pain significantly limited functional ability during flares, or if pain significantly limited functional ability during flares AT ANY TIME since July 1999, and if so, the examiner must estimate range of motion during flares. 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 that the examiner does not have the requisite knowledge or training to provide such opinions. The examiner should identify all neurologic manifestations of the Veteran's lumbar spine disability, currently or for any identifiable period of time since July 1999. It should be noted that in a June 2020 statement asserted the Veteran reported an urge to defecate and urinate during a February 2005 VA examination indicating subjective sensations of bowel and bladder incontinence. If there is neurological impairment, the examiner should identify the nerve or nerves involved and determine the manifestations. The examiner should also comment on the impact of the Veteran's lumbar spine disability on his ability to work. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.