Citation Nr: 21031793 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-38 392 DATE: May 24, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent for cervical strain and degenerative changes with left arm pain (cervical spine disability) is remanded. Entitlement to service connection for a right elbow disorder, including as secondary to the service-connected cervical spine disability is remanded. Entitlement to service connection for numbness in fingers in right hand and pain between shoulder blades, including as secondary to the service-connected cervical spine disability is remanded. Entitlement to service connection for a headache disorder, including as secondary to the service-connected cervical spine disability is remanded. Entitlement to service connection for sleeping problems with irritability, including as secondary to the service-connected cervical spine disability is remanded. Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from December 2004 to November 2005. She had additional service in the U.S. Army Reserves. This appeal arises from a May 2014 rating decision, denying an increased rating claim for a cervical spine disability; service-connection claims for right elbow, right hand fingers/shoulders disorder, headaches, sleeping problems with irritability; a petition to reopen the previously denied service-connection claim for a low back disorder. 1. Entitlement to an increased rating in excess of 20 percent for a cervical spine disability. The file contains records in February 2014 from the agency of original jurisdiction (AOJ) that the Veteran cancelled a scheduled VA examination that month of the cervical spine disability. Then, the AOJ issued a May 2014 rating decision denying the claim, noting the Veteran's failure to report for her scheduled exam. However, the Veteran's June 2014 notice of disagreement (NOD) asserts that she is a full-time working mom and was initially scheduled without consideration for her schedule. Accordingly, she did call to reschedule the hearing, but the VA employee she contacted to reschedule was "very rude" and disrespectful of her service. She was verbally told she would be given another appointment the following month, but instead her claim was subsequently denied by the AOJ without rescheduling her for another exam. See June 2014 NOD. Review of the file shows the AOJ's records on cancellation of the exam corroborated her assertions, with notations in February 2014 that she was "unable to keep appointment" and "Veteran is unable to come for an appointment at this time due to work". As such, she has shown good cause for rescheduling the VA examination. The Veteran is advised that failure to report to an examination may result in a decision based only on the record. 38 C.F.R. § 3.655 (b). 2. Entitlement to service connection for a right elbow disorder, including as secondary to the service-connected cervical spine disability. 3. Entitlement to service connection for numbness in fingers in right hand and pain between shoulder blades, including as secondary to the service-connected cervical spine disability. 4. Entitlement to service connection for a headache disorder, including as secondary to the service-connected cervical spine disability. 5. Entitlement to service connection for sleeping problems with irritability, including as secondary to the service-connected cervical spine disability. The Veteran contends that her disorders of the right elbow and right hand fingers/shoulders and headache and sleep disorders are related to service, and alternatively, as secondary to her service-connected cervical spine disability. Per a September 2005 Line of Duty report, the Veteran suffered an injury that was incurred in service. The report details that, in September 2005, while stationed in Iraq, she was walking across the street when she was struck by a U.S. military vehicle. She suffered bruises and scrapes to the left ankle, foot, lower back, left hand and arm. She was treated at the Air Force Hospital and released. See September 2005 Line of Duty report. VA treatment records show complaints of pain and numbness in her right shoulder, arm, elbow, forearm and wrists, as well as headaches and sleep problems. In this regard, pain resulting in functional impairment of earning capacity, even if there is no identified underlying diagnosis, can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Therefore, the Board finds a remand is necessary for a VA examination and opinion on these claimed disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA examination is needed to address whether the claimed disorders were caused by or related to service, or proximately due to or aggravated by service-connected disability. 38 C.F.R. §§ 3.303, 3.310; El Amin v. Shinseki, 26 Vet. App. 136 (2013). Of note, it appears she was initially scheduled for examinations on these claims in February 2014, but for the same reasons as listed above, her examinations were inadvertently cancelled and so must be scheduled again. Further, it appears that only partial service treatment records (STRs) and service personnel records (SPRs) have been associated with the claims file. On remand, the AOJ should attempt to obtain the Veteran's complete set of service treatment records and service personnel records. The Veteran had identified ongoing care from a private treating physician, Dr. R.A. and a private neurologist, Dr. J.T. See June 2014 NOD. On remand, the AOJ should ask the Veteran to identify such records, and if she does, attempt to obtain them. 6. Whether new and material evidence has been received to reopen the claim for service connection for a low back disorder. Lastly, it is not clear if the Veteran has received recent VA treatment. Her last associated VA treatment records are at the Peoria, Illinois VA outpatient clinic, dated in June 2016. VA treatment records are within VA's constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to obtain these potentially outstanding records. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records and service treatment records. 2. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated the Veteran for her cervical spine, right elbow, right hand fingers, shoulders, headaches, sleeping problems with irritability, and low back problems. After securing any necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. Obtain any outstanding VA treatment records, including at Peoria, Illinois VA outpatient clinic, from June 2016 to the present. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and her representative notified of such. After completing the above items, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed right elbow disorder, right hand fingers/shoulders disorder, headache disorder, and sleep disorder. All diagnostic testing deemed to be necessary should be accomplished. After examination and review of the claims file, the examiner should provide the following: (a) The examiner should identify all current diagnoses for the claimed right elbow, numbness in fingers in right hand and pain between shoulder blades, headache disorder, and sleep problems with irritability. In doing so, the examiner must discuss whether the Veteran has any associated functional impairment in earning capacity. (b) The examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed disability or functional impairment is caused by or otherwise etiologically related to her active service. (c) The examiner shoulder opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed disability or functional impairment was proximately due to, the result of, and/or aggravated by the service-connected cervical strain and degenerative changes with left arm pain. The term "aggravation" means any incremental increase in disability beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the nonservice connected disorder(s) prior to aggravation by the service-connected disability(ies). Rationale must be provided for the opinion proffered. Also reconcile any competent lay statements by the Veteran on the history of her claimed disabilities during service and symptoms following service. 3. After associating any additional records with the claims file, schedule the Veteran for an appropriate examination to address the current nature and severity of her service-connected cervical strain and degenerative changes with left arm pain disability. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 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 she experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use overtime. 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). The examiner should also identify any symptoms and functional impairments due to her service-connected cervical spine disability alone and discuss the effect of her disability on any occupational functioning and activities of daily living. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Biswajit Chatterjee, 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.