Citation Nr: 21041838 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-16 014 DATE: July 10, 2021 REMANDED Entitlement to a rating in excess of 10 percent disabling for service-connected chondromalacia of the right knee is remanded. Entitlement to a rating in excess of 10 percent disabling for service-connected chondromalacia of the left knee is remanded. Entitlement to a compensable rating for service-connected fracture of the left hand is remanded. Entitlement to a compensable rating for service-connected chronic sinusitis is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a neck disability, to include arthritis is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for Raynaud's syndrome, to include as secondary to hypertension, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1979 to August 1990. The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Accordingly, the Board has recharacterized the claims as indicated above to afford the Veteran the broadest possible scope of review. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In March 2021 the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to ratings in excess of 10 percent disabling for service-connected chondromalacia of the right and left knees and for compensable ratings for service-connected fracture of the left hand and chronic sinusitis are remanded. Relevant to the Veteran's claims for higher and compensable ratings for his service-connected bilateral knees, fracture of the left hand and chronic sinusitis, the Court has held that, where the record does not adequately reveal the current state of a claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board finds that the Veteran's claims for higher and compensable ratings for his service-connected bilateral knees, fracture of the left hand and chronic sinusitis must be remanded in order to afford him contemporaneous VA examinations in order to assess the current nature and severity of his service-connected disabilities. In this regard, the record reflects that the Veteran was most recently afforded VA examinations for his conditions in October 2016. Since that time, the Veteran has noted an increase in the severity of his symptoms and alleges that higher ratings are warranted. In light of the allegations of worsening symptoms and the degenerative nature of the Veteran's disabilities, as well as the amount of time which has passed since the Veteran's prior examinations, the Board finds that a remand is required in order to afford the Veteran contemporaneous VA examinations so as to determine his current level of impairment with regard to his service-connected bilateral knees, fracture of the left hand and chronic sinusitis. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Regarding the Veteran's examinations for his bilateral knee and hand disabilities, the Board finds, that the additional examinations are also necessary in order to be compliant with the Court's ruling in Correia v. McDonald, 28 Vet. App. 158 (2016). While the October 2016 VA examiners did answer questions as to pain with weightbearing, the examiners did not address whether pain was present on nonweight bearing or with passive range of motion, and active range of motion. Furthermore, they did not provide adequate explanations or rationale for the answers provided and they did not provide any specific values for passive range of motion testing. Therefore, on remand new examinations should include Correia compliant testing along with thorough explanations of the examiner's findings. The new examinations should include specific findings regarding the Veteran's range of motion in active motion, passive motion, weightbearing, and non-weightbearing. Additionally, the Board notes that the Court has also held that VA examiners must offer flare and functional impairment opinions based on estimates derived from information procured from relevant sources, including a Veteran's lay statements. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Furthermore, the Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. Furthermore, in Sharp, the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 10. In this case, the Veteran has alleged that he experiences flares of his bilateral knee and hand disabilities, and that he has functional impairment from such conditions. However, while the VA examiners acknowledged that the Veteran had functional impairment in general, they failed to ascertain adequate information, such as the frequency, duration, characteristics or severity of the flares and functional impairment by alternative means and therefore the detailed findings contemplated by the Sharp case have not been included. Therefore, a remand for new VA examinations to adequately address the Correia and Sharp standards is required. 38 C.F.R. § 4.2. Entitlement to service connection for a back disability is remanded. The Veteran contends that he suffers from a back disability as a result of his active duty service. Specifically, the Veteran alleges that he fell during service and that he had documented back pain during service and resulted in his current back disability. Post-service treatment records reflect the Veteran's reports of back pain as well as disc problems to include bulging discs. In June 2015 the Veteran underwent a VA Back Conditions examination. The examiner found that the Veteran did not have a diagnosed thoracolumbar condition, but also noted that the Veteran suffered from bulging discs and suffered pain with abnormal range of motion. The examiner opined that the Veteran's back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that while the Veteran's service treatment records reflected complaints of back pain, post-service records were silent for a chronic progression of a back condition, and that it would require resorting to speculation to establish a relationship between the Veteran's current condition and his in-service complaints. The Board finds that the June 2015 opinion is inadequate for adjudication purposes as the examiner failed to provide a thorough medical explanation and rationale for his opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, on remand an addendum opinion should be obtained. Entitlement to service connection for a neck disability, to include arthritis is remanded. The Veteran contends that he suffers from a neck disability as a result of his active duty service. Specifically, the Veteran alleges that he fell during service and that repetitive strain and injury from his required service duties resulted in his neck disability. Post-service treatment records reflect the Veteran's reports of neck pain as well as treatment for arthritis. However, the Board notes that the Veteran has not been provided with an examination. Therefore, on remand, an examination to determine the nature and etiology of his claimed neck disability should be obtained. Entitlement to service connection for hypertension is remanded. The Veteran contends that he suffers from hypertension which began during his active duty service. Specifically, the Veteran alleges that his blood pressure began fluctuating during his active duty service in response to stressful conditions and that such was the beginning of his hypertension. Post-service treatment records reflect elevated blood pressure readings as well as a diagnosis of hypertension. In June 2015 the Veteran underwent a VA Hypertension examination. The examiner confirmed the Veteran's hypertension diagnosis but found that such was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that while the Veteran had fluctuating blood pressure readings during service, such could have been related to his training and drills. Furthermore, the examiner found that the Veteran had concomitant comorbidities and that the Veteran had unspecified essential hypertension which often did not have an identifiable cause. Therefore, the examiner found it was less likely than not that the Veteran's high blood pressure was related to his high blood pressure readings in service. The Board finds the examiner's opinion to be too speculative in nature to be probative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). In addition, the examiner failed to provide an adequate medical explanation and rationale for his opinion. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. Therefore, on remand an addendum opinion should be obtained. Entitlement to service connection for Raynaud's syndrome, to include as secondary to hypertension, is remanded. Regarding the Veteran's claim for service connection for Raynaud's syndrome, the Board finds it is inextricably intertwined with the claim for service connection for hypertension remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, adjudication of the Veteran's claim for service connection for Raynaud's syndrome must wait for satisfactory development and adjudication of the claim for service connection for hypertension. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records and associate them with the record. 2. The Veteran should be afforded a VA examination to determine the current nature and severity of his service-connected right and left knee disabilities. All indicated testing should be accomplished and all symptomatology associated with such disabilities should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's right and left knees and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weightbearing and non-weightbearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran's right and left knee disabilities on his daily activities and employability. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. 3. The Veteran should also be afforded a VA examination to determine the current nature and severity of his service-connected left-hand disability. All indicated testing should be accomplished and all symptomatology associated with such disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's left hand and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weightbearing and non-weightbearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran's left-hand disability on his daily activities and employability. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. 4. The Veteran should also be afforded a VA examination to determine the current nature and severity of his service-connected chronic sinusitis. All indicated testing should be accomplished and all symptomatology associated with such disability should be identified. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran's chronic sinusitis on his daily activities and employability. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. 5. The Veteran should be provided with a VA examination to determine the nature and etiology of his claimed back disability. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. Any evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner should respond to the following: A) Identify all manifestations of the Veteran's back disability, to include any diagnosed disc problems or arthritis. B) For any diagnosed back disability, is it at least as likely as not (50 percent or greater probability), that such disability had its onset during any period of service, or is otherwise related to such period of service, to include the documented back pain therein? C) If arthritis is diagnosed, did such arthritis manifest within one year of the Veteran's service separation, and if so, describe the manifestations. The rationale for any opinion offered should be provided. 6. The Veteran should be provided with a VA examination to determine the nature and etiology of his claimed neck disability. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. Any evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner should respond to the following: A) Identify all manifestations of the Veteran's neck disability, to include any diagnosed arthritis. B) For any diagnosed neck disability, is it at least as likely as not (50 percent or greater probability), that such disability had its onset during any period of service, or is otherwise related to such period of service? C) If arthritis is diagnosed, did such arthritis manifest within one year of the Veteran's service separation, and if so, describe the manifestations. The rationale for any opinion offered should be provided. 7. The Veteran should be provided with a VA examination to determine the nature and etiology of his claimed hypertension. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. Any evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner should respond to the following: A) Identify all manifestations of the Veteran's hypertension. B) For any diagnosed hypertension, is it at least as likely as not (50 percent or greater probability), that such disability had its onset during any period of service, or is otherwise related to such period of service? The rationale for any opinion offered should be provided. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.