Citation Nr: 21031629 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-17 066A DATE: May 24, 2021 REMANDED Entitlement to a rating in excess of 10 percent for limitation of flexion of the right leg is remanded. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. Entitlement to service connection for cervical spondylosis (claimed as neck injury) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1983 to September 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2018, the Veteran testified at a Board hearing. The transcript is of record. These issues were previously before the Board, most recently in January 2021. 1. Entitlement to a rating more than 10 percent for limitation of flexion of the right leg is remanded. 2. Entitlement to a rating more than 10 percent for right knee instability is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues of entitlement to a rating more than 10 percent for limitation of flexion of the right leg and entitlement to a rating more than 10 percent for right knee instability. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2020, the United States Court of Appeals for Veterans Claims (Court) remanded these two issues back to the Board because the September 2013, February 2018, and April 2018 VA examination had not complied with the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examination report was inadequate because the examiner "did not elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of recordincluding the veteran's lay informationor explain why she could not do so." 29 Vet. App. at 35. For disabilities rated on the basis of range-of-motion loss, this functional-loss estimate must be in the terms of range-of-motion loss so that the adjudicator can apply the functional loss to the rating criteria in § 4.71a. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (explaining that 38 C.F.R. § 4.40 "speaks generally in terms of disability of the musculoskeletal system, and explains what may cause a functional loss," but that, "whatever the background, an applicant for disability benefits is rated based on the criteria set forth in § 4.71a"). Here, the March 2021 VA examiner repeated this mistake even after the Board's January 2021 remand directed the examiner to express an opinion estimating loss of range of motion and estimating loss of functional ability during repetitive use and flare-ups in the right knee. The Board advised that an opinion must be based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. The Board further noted that an opinion stating merely that the examiner is unable to provide the requested information as the Veteran was not examined following repeated use over time would be insufficient. The March 2021 VA examiner, however, provided no estimates of additional functional loss due to repeated use over time or during flareups of right knee pain. Instead, the VA examiner only offered the following conclusion without rationale: "After review and consideration of the available procured data, this examiner has no basis with which to expect nor anticipate any additional loss with prolonged repetitive use and/or flareup." The Board finds this inadequate. An addendum VA medical opinion addressing the Veteran's lay statements about functional loss with repeated use over time and during flareups is warranted. 3. Entitlement to service connection for cervical spondylosis is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for cervical spondylosis. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board's January 2021 remand order advised that the Veteran is competent to report his symptoms and history. The Board directed that such reports must be acknowledged and considered in forming any opinion. The Board directed that if the examiner rejected the Veteran's reports, then the examiner must explain why. The examiner was not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support conclusions. The March 2021 VA examiner however rejected the Veteran's lay accounts of treatment for three in-service neck accidents without sufficient explanation. The Veteran reported being treated for parachuting accidents in 1984 and 1985 and an automobile accident in 1986. However, the VA examiner found "no evidence of any complaints, treatment, diagnosis or injury related to the current neck condition during AD service." The Board finds this inadequate. An addendum VA medical opinion addressing the Veteran's lay statements is warranted. The matters are REMANDED for the following action: 1. In remanding this matter, 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. 2. Obtain updated VA and/or private treatment records. In particular, the RO should attempt to obtain any outstanding service treatment records for the period between 1983 and 1985 out of Fort Bragg, as identified by the Veteran's representative at the November 2018 Board hearing. The RO should also attempt to obtain any outpatient rehabilitation and physical therapy for the Veteran's knee disabilities that were conducted through VA's CHOICE program, as identified by the parties in a joint motion for partial remand granted by the Court in August 2020. If any identified records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's right knee disabilities. The examiner must review the claims file, including a copy of this remand order. The clinician must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the clinician should identify any symptoms and functional impairments due to the service-connected knee disabilities alone and discuss the effect of the Veteran's service-connected knee disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the clinician 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 the clinician is unable to provide such an opinion without resort to speculation, the clinician must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The clinician must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The clinician is advised that a statement that the examination did not take place during a flare-up or after repetitive use over time is not a sufficient rationale for inability to provide an opinion. The Board recognizes the difficulty in answering the above questions precisely but is bound by the cited decisions of the Court to ask them and requests that the examiner attempt to answer them as best as possible. The Board appreciates the examiner's efforts in doing so. 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's cervical spondylosis. The examiner must review the claims file, including a copy of this remand order. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a.) Is cervical spondylosis at least as likely as not related to service, including in-service parachuting and automobile accidents? In rendering this opinion, the examiner is advised that the Veteran is competent to report symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. The Veteran reported being treated for parachuting accidents in 1984 and 1985 and an automobile accident in 1986. The Veteran denied neck pain prior to service but affirmed neck pain at separation and since. If the examiner rejects the Veteran's reports, then the examiner must explain why. 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 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. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current neck condition is not related to service. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.