Citation Nr: 21041549 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-37 004 DATE: July 9, 2021 REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a calcium deposit is remanded. Entitlement to service connection for lumbosacral spine disability is remanded. Entitlement to service connection for a sciatic nerve disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of a right foot injury is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection for a right knee disability and residuals of a right foot injury, assigning a 10 percent disability rating to each. An October 2020 rating decision granted service connection for hallux valgus of the right foot from July 2015. The Veteran also appeals a November 2015 rating decision that denied service connection for a right hip disability, lumbosacral spine disability, sciatic nerve disability, and a calcium deposit. A Board hearing was held in February 2020. A transcript is of record. In March and April 2021, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted the hearing is no longer available. In the same notice, the Veteran was afforded the opportunity to request another hearing before a different VLJ within 30 days. As the Veteran did not indicate he wanted a new hearing and 30 days has elapsed, the Board will proceed with the claim. In May 2020, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. As to the claims for service connection, the Board requested that an examiner opine as to whether the Veteran's disabilities were related to active service and whether the disabilities were related to the Veteran's right foot disability. Indeed, the Veteran has consistently raised the theory that his claimed disabilities are the result of a gait disturbance caused by his right foot injury in service. Private medical records show an antalgic gait related to the Veteran's right foot. See July 2017 private medical records. As to the claim for an increased rating, the Board requested that an examiner provide an adequate, contemporaneous VA examination to assess the current severity of the Veteran's service-connected right foot and right knee. The claims are back before the Board for further appellate proceedings. 1. Entitlement to service connection for a right hip disability is remanded. The evidentiary record shows that the Veteran has a hip disability described as unilateral primary osteoarthritis and iliotibial band syndrome. See July 2017 private medical records, October 2020 VA examination report. The Veteran was afforded a new VA examination in October 2020. Notably, the examiner did not discuss the diagnosis of osteoarthritis and stated that there were no significant diagnostic test findings or results related to arthritis. See October 2020. The absence of any relevant discussion calls into question whether the examiner reviewed the medical records. Regardless, as the opinion relies on an inaccurate factual premise, the Board finds that the examination report is inadequate for adjudicative purposes. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Moreover, the examiner did not discuss the relationship between the Veteran's altered gait and his right hip disability. Indeed, an opinion is specifically needed as to this contention as at least one examiner has noted that pain on palpation of the right thigh was due to the Veteran's altered gait. See November 2015 VA examination report. Thus, a new examination is necessary on remand. 2. Entitlement to service connection for a calcium deposit is remanded. The Veteran requests service connection for a "calcium deposit on the sciatic nerve causing right leg and hip pain." See July 2015 VA Form 21-526. The evidentiary record is sparse for expert discussion of the Veteran's calcium deposit. Generally, the calcium deposit appears to be the cause of some right hip pain that allegedly impairs standing and walking. See May 2014 private medical records, February 2020 Board hearing Tr. at 14, and July 2015 VA Form 21-526. The calcium deposit may be related to an "old hip injection." See May 2014 private medical records. The Veteran received a hip injection because he could not bend his leg. See Board Hearing Tr. at 10. The Board notes that the Veteran has not been afforded a VA examination specifically for his calcium deposit. In its May 2020 remand, the Board requested that an examiner, in assessing any neurological condition, discuss the calcification irritating the sciatic nerve. The Veteran was not afforded a specific neurologic examination on remand. Rather, the examiner wrote a remark in the hip VA examination report. He stated that the "calcium deposit is in the buttock of an old injection and does not warrant an additional diagnosis." See October 2020 Hip VA examination report. He also noted that the calcium deposit is not sitting on the sciatic nerve. Id. Nothing further was stated about the Veteran's calcium deposit. There is insufficient evidence of record to determine whether the alleged, uncompensated functional impairments caused by the Veteran's calcium deposit is related to active service or a service-connected disability. As such, remand is necessary for a VA examination. See Wait v. Wilkie, 33 Vet.App. 8 (2020), McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). 3. Entitlement to service connection for lumbosacral spine disability is remanded. The evidentiary record shows that the Veteran has pain, limited range of motion, lumbosacral strain, stenosis, and dextroscoliosis. See June 2015 notice of disagreement, March 2020 and April 2021 private medical records, and October 2020 VA examination report. The Veteran was afforded a new VA examination in October 2020. However, the examiner did not discuss the relationship, if any, between the Veteran's altered gait and his lumbosacral spine disability as instructed by the Board. Thus, remand is necessary to ensure compliance with the Board's remand directives. The Veteran has also stated that his lumbosacral spine disability may have been a result of marches with 60 pounds on his back during service. See Board hearing Tr. at 7. On one occasion, he went to sick call was given medication. Id. An opinion addressing this contention is needed on remand. 4. Entitlement to service connection for a sciatic nerve disability is remanded. As noted above, the Veteran was not afforded a neurological VA examination as instructed by the Board. However, in the lumbosacral spine VA examination report, the examiner noted that the Veteran had a right lower extremity radiculopathy that is caused by the Veteran's lumbosacral spine disability. Thus, this claim is inextricably intertwined with the claim for service connection for a lumbosacral spine disability. 5. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. The Veteran was last afforded a VA examination in October 2020. The examiner noted that the Veteran did not endorse flare-ups. See October 2020 VA examination report. However, this is inconsistent with the record as the Veteran has endorsed flare-ups throughout the appellate period with prolonged sitting and certain activities. See May 2017 VA examination report, July 2017 private medical records, and Board hearing Tr. at 18. Thus, a new examination must be afforded to the Veteran for an examiner to elicit relevant information and determine the severity of impairment during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 35 (2019). 6. Entitlement to an initial rating in excess of 10 percent for residuals of a right foot injury is remanded. The Veteran was last afforded a VA examination in October 2020. The Veteran has since submitted additional medical evidence related to his right foot. Importantly, the evidence shows physical therapy treatment after the Veteran reported that his foot pain has "recently got much worse" in January 2021. See April 2021 private medical records. Thus, a new VA examination is necessary to assess the current severity of the Veteran's right foot disability. Snuffer v. Gober, 10 Vet. App. 400 (1997). Moreover, the October 2020 VA examination report noted that the Veteran did not endorse flare-ups. However, this is inconsistent with the record as the Veteran has endorsed flare-ups throughout the appellate period that impairs his ability to walk and drive. See May 2014 private medical records, May 2017 VA examination report, and Board Hearing Tr. at 16. On remand, the examiner should elicit relevant information to determine the severity of impairment during flare-ups. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his right hip, calcium deposit, lumbosacral spine, sciatic nerve, right knee, and right foot disabilities. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the development in number 1 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his right hip symptoms. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all right hip disabilities present. For each identified disability, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's right hip disability was incurred in, or is otherwise related to, his time on active service? B. Is it at least as likely as not that the Veteran's right hip disability was (a.) caused or (b.) aggravated by his service-connected disabilities, to include an altered gait caused by his service-connected right foot? The examiner is to discuss the Veteran's documented diagnoses of record, to include unilateral primary osteoarthritis and Iliotibial band syndrome. The examiner is also to discuss the effect, if any, of an altered gait on any right hip disability. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. 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 his or her 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 an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the development in number 1 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his calcium deposit. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's calcium deposit was incurred in, or is otherwise related to, his time on active service? B. Is it at least as likely as not that the Veteran's calcium deposit was (a.) caused or (b.) aggravated by his service-connected disabilities, to include a hip injection, if related? The examiner is to discuss the Veteran's need for a hip injection after being unable to move his leg. See Board hearing transcripts at page 10. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. 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 his or her 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 an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the development in number 1 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his lumbosacral spine symptoms. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all lumbosacral spine disabilities present. For each identified disability, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's lumbosacral spine disability was incurred in, or is otherwise related to, his time on active service, to include marches with 60 pounds on the Veteran's back during service and the need for medication for the same therein? B. Is it at least as likely as not that the Veteran's lumbosacral spine disability was (a.) caused or (b.) aggravated by his service-connected disabilities, to include an altered gait caused by his service-connected right foot? The examiner is to discuss the Veteran's documented diagnoses of record, to include lumbosacral strain, stenosis, and dextroscoliosis. The examiner is also to discuss the effect, if any, of an altered gait on any lumbosacral spine disability. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. 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 his or her 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 an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After the development in number 1 above is completed, schedule the Veteran for appropriate examinations to determine the current nature and severity of his right knee and right foot. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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 describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. 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 he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on the next page) 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, if applicable, 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). 6. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.