Citation Nr: 22014244 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 15-34 307 DATE: March 11, 2022 REMANDED Entitlement to increases in the staged ratings assigned for right hip osteopenia (currently noncompensable prior to July 15, 2021, and rated 10 percent disabling thereafter) is remanded. Entitlement to increases in the staged ratings assigned for left hip osteopenia (currently noncompensable prior to July 15, 2021, and rated 10 percent disabling thereafter) is remanded. Entitlement to increases in the staged ratings assigned for lumbar spine osteoporosis (currently noncompensable prior to January 21, 2021, 10 percent disabling prior to November 24, 2021, and 20 percent thereafter) is remanded. Entitlement to increases in the staged ratings assigned for cervical spine osteoporosis (currently noncompensable prior to January 21, 2021, 10 percent disabling prior to November 24, 2021, and 20 percent thereafter) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1961 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for the disabilities on appeal and assigned a noncompensable rating for each. This case was remanded in May 2018, November 2020, and April 2021 for further development; it has since been re-assigned to the undersigned. A February 2021 rating decision subsequently granted separate 10 percent ratings for osteoporosis of the cervical and lumbar spines, effective January 21, 2021. An August 2021 rating decision granted separate 10 percent ratings for left and right hip osteopenia, effective July 15, 2021. The Agency of Original Jurisdiction (AOJ) also changed the disability from osteoporosis of the right and left hips to osteopenia of the right and left hips. A November 2021 rating decision then granted separate 20 percent ratings for osteoporosis of the cervical and lumbar spines, effective November 24, 2021. As these increases do not constitute full grants of the benefits sought on appeal, the issues remain in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to increases in the staged ratings assigned for right hip osteopenia (currently noncompensable prior to July 15, 2021, and rated 10 percent disabling thereafter) is remanded. 2. Entitlement to increases in the staged ratings assigned for left hip osteopenia (currently noncompensable prior to July 15, 2021, and rated 10 percent disabling thereafter) is remanded. 3. Entitlement to increases in the staged ratings assigned for lumbar spine osteoporosis (currently noncompensable prior to January 21, 2021, 10 percent disabling prior to November 24, 2021, and 20 percent thereafter) is remanded. 4. Entitlement to increases in the staged ratings assigned for cervical spine osteoporosis (currently noncompensable prior to January 21, 2021, 10 percent disabling prior to November 24, 2021, and 20 percent thereafter) is remanded. The Veteran contends that his bilateral hip, neck, and back disabilities are more disabling that reflected by the staged ratings currently assigned. As explained below, clarification is required to determine the actual diagnoses the Veteran has for the disabilities on appeal. Historically, the Veteran underwent a VA examination in July 2014, wherein the examiner diagnosed degenerative arthritis of the thoracolumbar spine with osteoporosis; osteoarthritis and osteoporosis of the bilateral hips; and degenerative arthritis of the cervical spine with osteoporosis. She initially opined that the Veteran's osteoporosis in the back and femur were at least as likely the result of his deep-sea diving during service. In an addendum opinion, she opined that osteoporosis is not a risk factor for the development of osteoarthritis of the back, neck, and hips, and concluded that the Veteran's back, neck, and femur symptoms were caused by his osteoarthritis and not his osteoporosis, which was asymptomatic. In a February 2015 rating decision, the AOJ granted service connection for osteoporosis of the left hip and femur; right hip and femur; lumbar spine; and cervical spine. Each disability was assigned a noncompensable rating, effective March 4, 2014. Several examinations have been conducted since that time which have called into question the accuracy of the given diagnoses. A July 2016 VA back examiner diagnosed osteoporosis and osteoarthritis of the thoracolumbar spine and concluded that the Veteran's osteoarthritis back pain "somewhat increased" while his osteoporosis continued to remain asymptomatic without change in severity. The examiner diagnosed osteoarthritis, trochanteric pain syndrome, and osteoporosis of the bilateral hips. She concluded that, subjectively, the Veteran had increased pain in the bilateral hips but that his osteoporosis diagnosis continued to remain asymptomatic without change in severity. With respect to the Veteran's neck disability, the examiner diagnosed osteoporosis, degenerative arthritis of the cervical spine, and degenerative disc disease. She opined that the Veteran's degenerative joint related neck pain had somewhat increased but that his osteoporosis remained asymptomatic without change in severity. The January 2021 VA neck examiner only diagnosed asymptomatic osteoporosis of the cervical spine. The Veteran experienced limited range of motion during examination and the examiner noted muscle spasm bilaterally in the neck from the head being protracted forward. The examiner concluded that, for the VA established diagnosis of osteoporosis of the cervical spine, the diagnosis was changed and was a correction: "Based on history and medical evidence of record, there are no symptoms such as fracture in the cervical spine, lumbar spine[,] or bilateral femurs. Osteoarthritis is not a result of osteoporosis." The same examiner diagnosed asymptomatic osteoporosis in the bilateral hips. See January 2021 VA hip examination. The examiner stated that the VA established diagnosis of osteoporosis of the right and left hip/femur is changed and is a correction and that osteoporosis is asymptomatic. He stated that the essential question was whether the "new degenerative changes" in the joints were related to osteoporosis and concluded that they were separate conditions, etiologically and pathologically, and that there was no causal relationship between arthritis and osteoporosis. The examiner explained that osteoporosis affects the skeletal structures and is a metabolic problem due to an imbalance between bone resorption and replacement, whereas arthritis occurs in the joints and the arthritic changes are degenerative and multifactorial. The January 2021 VA back examiner only seemingly diagnosed asymptomatic osteoporosis of the lumbar spine and concluded that this diagnosis was changed and was a correction: "Based on history, [the Veteran] is asymptomatic from the osteoporosis. Osteoporosis does not result in osteoarthritis and the main complication or symptom that is clinically relevant is fracture, which there is no evidence of in the cervical spine, lumbar spine, or femurs (sic)." The Board finds the January 2021 VA neck, hip, and back examinations confusing in that the examiner only identifies asymptomatic osteoporosis as diagnoses but also includes discussion on osteoarthritis. Additionally, the examiner stated that the diagnoses were being corrected (without explaining the correction). Based on the January 2021 VA examinations, however, the AOJ granted a 10 percent rating for osteoporosis of the cervical spine, effective January 21, 2021, based on forward flexion of the cervical spine greater than 170 degrees but not greater than 335 degrees; forward flexion greater than 30 degrees but not greater than 40 degrees; and localized tenderness and muscle spasms not resulting in abnormal gait or abnormal spinal contour. The AOJ also granted a 10 percent rating for osteoporosis of the lumbar spine, effective January 21, 2021, based on combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees and objective evidence of osteoporosis with joint manifestations. The July 2021 VA hip examiner included a diagnosis of osteopenia of the bilateral hips, concluding that the VA established diagnosis of osteoporosis was changed and was a correction since osteoporosis was unsubstantiated by history, records, bone density scans, and examination; he also concluded that the Veteran's hips were not the source of his pain, but that he likely had some mild referred pain from the back. During his VA neck examination, degenerative arthritis was diagnosed. The examiner stated that the VA established diagnosis of osteoporosis of the cervical spine was incorrect as there was no diagnostic finding or clinical symptom of fracture of the cervical spine; instead, the Veteran's age-related degenerative arthritis explained his symptoms. He continued that it appeared the diagnosis of osteoporosis was being conflated with the diagnosis of arthritis. The Veteran's neck arthritis would better explain the pain in the neck and back, and probably the referred pain from the back to the hips. Confusingly, after finding that the Veteran had no evidence of osteoporosis, the examiner concluded that the Veteran has no clinical manifestations of osteoporosis and was therefore asymptomatic. During his VA back examination, degenerative arthritis and osteoporosis were diagnosed. The examiner determined that the Veteran's osteoporosis was not due to his service since osteoporosis is a metabolic bone disorder. The history that the Veteran described would not result in osteoporosis but "would potentially cause compression fractures or even possibly arthritis." Based on the July 2021 VA examinations, the AOJ granted separate 10 percent ratings for bilateral osteopenia (previously rated as osteoporosis) based on painful motion of the hip and objective evidence of osteitis deformans, each effective July 15, 2021. During his November 2021 VA hip, back, and neck examinations, osteopenia of the bilateral hips and osteoporosis of the lumbar and cervical spine were diagnosed. The examiner concluded that there was a worsening of the Veteran's symptoms but that no change to the diagnoses was warranted. Based on the November 2021 VA examination, the AOJ increased the ratings for osteoporosis of the lumbar and cervical spines to 20 percent, each effective November 24, 2021. When an examiner is unable to distinguish the symptoms of service-connected disability from nonservice-connected manifestations, all the manifestations will be considered part of the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, the Board finds the examinations to date are confusing with respect to whether the Veteran's arthritis is a progression of the prior service-connected diagnoses of osteoporosis, correction of an error in the prior diagnoses, or development of a new and separate condition. See 38 C.F.R. §§ 4.13, 4.125. Additionally, if there are diagnoses of disabilities manifesting in different lumbar spine, cervical spine, and bilateral hip symptoms that are new and separate conditions, then the Veteran would have both service-connected and nonservice-connected disabilities. Because it is unclear whether the Veteran's lumbar spine, cervical spine, and bilateral hip symptoms may be attributed to either his service-connected disabilities or nonservice-connected disabilities, the Board has no choice but to remand for another VA examination to determine the current severity and manifestations of the Veteran's service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain copies of VA treatment records from November 2021 to the present. 2. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received for the disabilities on appeal. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. After all available records have been associated with the claim file, schedule the Veteran for a VA examination (or telehealth interview) to determine the current nature and severity of his service-connected bilateral hips, back, and neck disabilities by an examiner who has not previously examined the Veteran. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disabilities and report all signs and symptoms associated with the Veteran's disabilities. The examiner should then address the following: (a) Is the Veteran's osteoarthritis of the lumbar spine a progression or correction of the diagnosis of osteoporosis of the lumbar spine? (b) Are the Veteran's diagnoses of osteoarthritis and trochanteric pain syndrome of the bilateral hips a progression or correction of the diagnosis of osteopenia of the right and left hips? (c) Are the Veteran's diagnoses of degenerative arthritis and degenerative disc disease of the cervical spine a progression or correction of the diagnosis of osteoporosis of the cervical spine? (d) If the answer to (a), (b), and/or (c) are no, the examiner should attempt (to the extent possible) to distinguish the symptoms and manifestations of any service-connected bilateral hip, thoracic spine, and cervical spine disability from any completely separate and distinct hip, lumbar spine, and cervical spine conditions. The examiner is asked to note if it is not possible to attribute the Veteran's symptoms to each disability separately. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.