Citation Nr: 21031927 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 10-19 359 DATE: May 25, 2021 REMANDED Entitlement to a disability evaluation in excess of 10 percent for osteoarthritis, right knee, is remanded. Entitlement to higher disability evaluations for lumbosacral strain, rated as 10 percent disabling prior to April 1, 2017, and as 20 percent disabling since April 1, 2017, is remanded. Entitlement to a disability evaluation in excess of 10 percent for radiculopathy, left lower extremity, since February 20, 2017, is remanded. Entitlement to a disability evaluation in excess of 10 percent for radiculopathy, right lower extremity, since February 20, 2017, is remanded. Entitlement to a compensable disability evaluation for left inguinal hernia is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1978 to April 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. Here, the Veteran has not opted-in to VA's test program, the Rapid Appeals Modernization Program (RAMP). Although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal was issued prior to that date. Accordingly, the Board will review his appeal under the existing Legacy Appeals System. These issues of increased ratings for the Veteran's right knee, lumbosacral strain and inguinal hernia were previously before the Board in September 2016, at which time they were remanded for additional development. Thereafter, they were readjudicated by the RO in Supplemental Statements of the Case dated in March 2019, January 2020, and April 2020. In addition, in a June 2020 Rating Decision, the RO increased the Veteran's disability rating for lumbosacral strain to 20 percent effective April 1, 2017, and also issued another Supplemental Statement of the Case readjudicating the issue of entitlement to a higher rating for lumbosacral strain at that time. The Board acknowledges that, since its September 2016 Remand, the Veteran has also submitted various additional service connection and increased rating claims which have been adjudicated under the AMA and are not currently before the Board. Although the Veteran submitted another claim for entitlement to an increased disability rating for lumbosacral strain along with these new claims, the RO acknowledged in its March 2020 Rating Decision that the lumbosacral strain claim was already on appeal and did not readjudicate it at that time. Also, the Veteran did not opt-in the lumbosacral strain claim to the AMA system from any of the Supplemental Statements of the Case. As such, the claim of entitlement to a higher disability evaluation for lumbosacral strain remains in the existing Legacy Appeals System. Additionally, in a March 2019 Rating Decision, the RO granted entitlement to service connection for radiculopathy of the left lower extremity and radiculopathy of the right lower extremity, both separately evaluated as 10 percent disabling under Diagnostic Code 8520. As these disabilities are considered part of the lumbosacral strain claim addressed in the prior Remand, they have been included in the Board's analysis of the current appeal. The Veteran seeks entitlement to higher disability ratings for his service-connected lumbosacral strain, right knee osteoarthritis, and left inguinal hernia. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. All three claims were remanded by the Board in September 2016 in order to provide the Veteran with updated VA examinations for each disability. In April 2017, the Veteran submitted Disability Benefits Questionnaires for Back (Thoracolumbar Spine) Conditions, Knee and Lower Leg Conditions, as well as Esophageal Conditions completed by a private physician while he was in Kuwait. Significantly, the Back (Thoracolumbar Spine) Conditions questionnaire indicated that the Veteran reported flare-ups that impacted the function of his thoracolumbar spine. Specifically, the Veteran reported that when his back pain became severe, he was unable to squat, bend without pain, stand for long periods of time, crawl up and down off vehicles, exercise, run, or lift weights. At that time, the Veteran's forward flexion of the thoracolumbar spine was limited to 75 degrees while his extension was limited to 30 degrees; however, the physician indicated that during flare-ups or after repeated use over time his forward flexion was limited to 70 degrees while his extension was limited to 25 degrees. Similarly, the VA Knee and Lower Leg Conditions questionnaire also indicated that the Veteran reported flare-ups that impacted the function of his right knee. Specifically, the Veteran reported that during flare-ups he experienced swelling and clicking of the knee, rendering him unable to stand for long periods of time, walk long distances, life weights, squat for long periods of time, or do push-ups. At that time, the Veteran's right knee flexion was limited to 120 degrees; however, the physician indicated that during flare-ups or after repeated use over time his right knee flexion was limited to 110 degrees. As such, these Disability Benefits Questionnaires objectively supported the Veteran's subjective claims of additional functional limitation of the lumbosacral spine and right knee during periods of flare up. However, pursuant to the Board's Remand instructions, the Veteran was provided with a VA Back (Thoracolumbar Spine) Conditions examination and a VA Knee and Lower Leg Conditions examination in February 2020. Both examinations indicated that the Veteran did not report flare-ups of the thoracolumbar spine and/or right knee. The February 2020 VA Back (Thoracolumbar Spine) Conditions examination indicated that the Veteran's forward flexion of the thoracolumbar spine was limited to 40 degrees while his extension was limited to 30 degrees; however, toward the end of the examination, the examiner simply stated that, "I do not believe the veteran gave full efforts to show me the ROM of flexion movement," without further elaboration or explanation. Meanwhile, although the February 2020 VA Knee and Lower Leg Conditions examination acknowledged the Veteran's report that his knee symptomatology was "still the same," it indicated that his right knee range of motion was now normal, from 140 degrees flexion to zero degrees extension. The Board finds the reports of the February 2020 VA Back (Thoracolumbar Spine) Conditions examination and the VA Knee and Lower Leg Conditions examination to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017) (VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination). Given that the April 2017 Disability Benefits Questionnaires objectively supported the Veteran's subjective claims of additional functional limitation of the lumbosacral spine and right knee during periods of flare up (and actually showed additional loss of motion during periods of flare-up or after repeated use), the fact that the February 2020 VA examinations indicated that the Veteran did not report any flare-ups appears to be contradicted by both previous and subsequent medical records in the claims file. This contradiction is especially apparent given that the Veteran did not report any improvement of his lumbosacral and/or right knee symptomatology at the time of the February 2020 examinations; to the contrary, the Veteran reported that his lumbosacral strain was actually "getting worse" due to increased pain severity, while he reported that his right knee osteoarthritis had "stayed the same." Additionally, in correspondence received in April 2019, the Veteran reported frequent flare-ups of low back pain which resulted in substantial limited range of motion and stiffness, and forced him to take time to rise from sitting or lying positions. Similarly, in January 2020 correspondence, the Veteran reported weekly muscles spasms, an altered gait, and flare-ups that resulted in him being able to only slightly move his back and requiring the use of a back brace. An April 2020 "Independent VA Rating Evaluation Regarding Lumbosacral Strain" submitted on the Veteran's behalf by an advanced registered nurse practitioner reiterated his complaints of guarding or muscle spasm, disturbance of locomotion, and flare-ups that resulted in him being able to only slightly move his back and requiring the use of a back brace. On remand, additional opinions should be obtained which describe the history of the Veteran's flare-ups into the present day. If the Veteran no longer experiences flare-ups of lumbosacral and/or right knee symptoms, then the examiner must explain whether this is due to an improvement in his service-connected disabilities. Furthermore, a blanket statement from an examiner expressing the belief that the Veteran failed to exert optimal effort into range of motion testing is not adequate. Such statements must be supported by sufficient explanation and rationale as to why the examiner reached that conclusion. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. If the examiner suspects malingering on the part of the Veteran and/or rejects the Veteran's reports of symptomatology, then he or she must provide a reason for doing so. Also with respect to the claim of entitlement to a higher disability rating for right knee osteoarthritis, the Board's September 2016 Remand explicitly directed that the RO specifically consider a schedular rating for meniscal injury given his history of arthroscopic meniscal surgery. See M-21, Part III.iv.4.A.3.i. However, since the Board's September 2016 Remand, the Supplemental Statements of the Case issued in March 2019, January 2020, and April 2020 did not address the Veteran's meniscal symptomatology. As such, on remand, the RO must specifically consider a schedular rating for meniscal injury given the Veteran's history of arthroscopic meniscal surgery. Stegall v. West, 11 Vet. App. 268 (1998) (where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance). With respect to the claim of entitlement to a higher disability rating for a left inguinal hernia, the Veteran submitted a VA Esophageal Conditions Disability Benefits Questionnaire completed by a private physician while he was in Kuwait in April 2017. At that time, the Veteran was diagnosed both as having gastroesophageal reflux disease (GERD) as well as a hiatal hernia. Indeed, the April 2017 questionnaire referenced an April 2015 "Esophago/Gastro Duodenoscopy Report" which recorded a 2-centimeter hiatal hernia. However, pursuant to the Board's September 2016 Remand, the Veteran was provided with a VA Esophageal Conditions examination in February 2020. Significantly, although this examination report diagnosed the Veteran as having GERD, it made no mention of his previously-diagnosed hiatal hernia. No explanation was given as to whether the Veteran's hiatal hernia had resolved or whether the previous diagnosis of hiatal hernia was incorrect. For these reasons, the Board also finds the February 2020 VA Esophageal Conditions examination to be inadequate. Specifically, an additional opinion should be obtained as to whether the Veteran's previous hiatal hernia diagnoses are still valid. If the Veteran no longer has a hiatal hernia diagnosis, then the examiner must discuss whether the previously-diagnosed hiatal hernia had resolved or whether the previous diagnosis was incorrect. If the Veteran is still currently diagnosed as having a hiatal hernia, then the examiner is asked to set forth all symptoms associated with that disability. If possible, the VA examiner should differentiate between the signs and symptoms attributable to the Veteran's nonservice-connected GERD versus those signs and symptoms associated with his service-connected hiatal hernia. If the manifestations of each disability cannot clearly be distinguished, then the VA examiner should so state. The matters are REMANDED for the following action: 1. Obtain an addendum opinion that fully summarizes the severity of the symptoms associated with the Veteran's service-connected lumbosacral strain, to include any functional limitation caused by flare-ups of the condition. All pertinent evidence of record should be made available to and reviewed by the examiner. If the reviewing examiner determines that an additional examination of the Veteran is required to address the questions posed, then such examination should be scheduled. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must elicit, consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, then he or she should be directed to clearly explain why that is so. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, then 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). In providing these opinions, the examiner must specifically acknowledge the flare-ups and associated limitation of function noted on the April 2017 Disability Benefits Questionnaire, in the April 2019 and January 2020 Veteran correspondences, and on the April 2020 "Independent VA Rating Evaluation Regarding Lumbosacral Strain." If the Veteran is found to no longer experience flare-ups of lumbosacral symptoms, then the examiner must explain whether this is due to an improvement in his service-connected disability (and if so, when it resolved) or whether the previous documentation of flare-ups was erroneous. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. If the examiner suspects malingering on the part of the Veteran and/or rejects the Veteran's reports of symptomatology, then he or she must provide a reason for doing so. 2. Obtain an addendum opinion that fully summarizes the severity of the symptoms associated with the Veteran's service-connected right knee osteoarthritis, to include any functional limitation caused by flare-ups of the condition. All pertinent evidence of record should be made available to and reviewed by the examiner. If the reviewing examiner determines that an additional examination of the Veteran is required to address the questions posed, then such examination should be scheduled. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must elicit, consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, then he or she should be directed to clearly explain why that is so. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, then 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). In providing these opinions, the examiner must specifically acknowledge the flare-ups and associated limitation of function noted on the April 2017 Disability Benefits Questionnaire. If the Veteran is found to no longer experience flare-ups of right knee symptoms, then the examiner must explain whether this is due to an improvement in his service-connected disability (and if so, when it resolved) or whether the previous documentation of flare-ups was erroneous. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. If the examiner suspects malingering on the part of the Veteran and/or rejects the Veteran's reports of symptomatology, then he or she must provide a reason for doing so. 3. Obtain an addendum opinion that fully summarizes the severity of the symptoms associated with the Veteran's service-connected hiatal hernia. All pertinent evidence of record should be made available to and reviewed by the examiner. If the reviewing examiner determines that an additional examination of the Veteran is required to address the questions posed, then such examination should be scheduled. If the Veteran is still currently diagnosed as having a hiatal hernia, then the examiner is asked to fully articulate all symptoms associated with that disability. If the Veteran no longer has a hiatal hernia diagnosis, then the examiner must discuss whether the previously-diagnosed hiatal hernia has since resolved (and if so, when it resolved) or whether the previous diagnoses were incorrect. (Continued on the next page) If possible, the VA examiner should differentiate between the signs and symptoms attributable to the Veteran's nonservice-connected GERD versus those signs and symptoms associated with his service-connected hiatal hernia. If the manifestations of each disability cannot clearly be distinguished, then the VA examiner should so state. 4. Thereafter, readjudicate the issues on appeal. If any determinations remain unfavorable to the Veteran, then he and his attorney should be furnished with a Supplemental Statement of the Case which addresses all evidence associated with the claims file since the last Supplemental Statement of the Case issued in April 2020, to include VA treatment records added to the claims file in October 2020. This Supplemental Statement of the Case must specifically consider a schedular rating for meniscal injury given the Veteran's history of arthroscopic meniscal surgery. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.