Citation Nr: 1754181
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 13-21 930 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi

THE ISSUES

1. Entitlement to a rating in excess of 10 percent disabling for chondromalacia and degenerative arthritis of the left knee.

2. Entitlement to a rating in excess of 10 percent disabling for chondromalacia and degenerative arthritis of the right knee.

3. Entitlement to a rating in excess of 10 percent disabling for residuals of a laceration to the right hand.

4. Entitlement to a rating in excess of 10 percent disabling for numbness, 5th finger, right hand, associated with residuals of a laceration to the right hand.

5. Entitlement to service connection for a lumbar spine disability.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Tiffany N. Hanson, Associate Counsel

INTRODUCTION

The Veteran had active service in the United States Army from August 1982 to August 1984 and from January 1985 to February 1991.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in May 2012 and October 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

In April 2015, the Veteran testified at a Travel Board hearing conducted before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file.

In August 2015, the Board remanded the claims for further development.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.

REMAND

Increased Rating

Pursuant to the Board’s August 2015 Remand, the Veteran underwent VA examinations in August 2016. Thereafter, a precedential case was issued by the United States Court of Appeals for Veterans Claims (Court) that directly affects this case. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. In addition, as relevant to the present case, the Court stated in Correia that knees are “undoubtedly weight-bearing.” The August 2016 VA examinations do not comply with Correia.
Also, the August 2015 Remand directed that all impairment associated with the Veteran’s residuals of a laceration to his right hand fingers and thumb, including any neurological impairment to the ulnar nerve, and scar should be evaluated. The August 2016 VA finger examination report does not reflect that any neurological impairment of the ulnar nerve was evaluated. Given the foregoing, the Veteran must undergo another VA examination.

Service Connection

The Veteran seeks service connection for a low back disability that he contends was caused by the performance of duties associated with his Military Occupational Specialty (MOS) which included frequent heavy lifting and loading and unloading trucks in service.

In January 2009, the Veteran was seen by a private physician for complaints of low back pain. He underwent an MRI of his lumbar spine. Imaging studies revealed a large right-sided disk herniation at L5-S1 and a small concentric disk herniation at L4-L5. The physician also recommended a lumbar laminectomy.

In October 2012, the Veteran underwent a VA examination for a nexus opinion regarding his lumbar spine disability. The examiner diagnosed the Veteran with lumbar degenerative disc disease and noted the Veteran’s low back injury while playing football in-service. The examiner further stated that the disability was a “multi-factorial pathology that can be caused by sports, normal aging, and regular activities of daily living. Although he did suffer a lumbar strain while in service, [this is] highly unlikely that it led to his current back condition.” The examiner ultimately concluded that the Veteran’s degenerative disc disease was due to the normal aging process.

At the April 2015 Travel Board hearing, the Veteran stated that as part of his in-service duties, he would regularly load and unload trucks and that he would carry items as heavy as seventy-five pounds, frequently carrying items weighing forty to fifty pounds. The Veteran also said that he had back problems and pains from working while on active duty. The Veteran’s MOS was a Motor Transport operator.

In light of the Veteran’s testimony, another VA examination was afforded to address the additional theory of causation. In the remand directives, the Board requested that the examiner address the Veteran’s contentions and opine as to whether it was at least as likely as not that the Veteran’s lumbar spine disability had its onset in or was otherwise related to his active military service.

In August 2016, the Veteran was afforded the VA examination. The examiner reviewed the claims file, including the Veteran’s medical records and service treatment records. Within the report, the examiner stated that the Veteran had his separation examination in September 1990 and there was no mention of back problems. The examiner also reported that the Veteran was seen in December 1995 for lumbar strain at which time he was treated with a heating pad and Bengay.
The examiner determined that the Veteran had disk herniation with an initial date of diagnosis of January 2009. The examiner also confirmed that the MRI of the lumbar spine, performed in January 2009, showed a large right-sided disc herniation L5-S1 and small concentric disk herniation L4-L5. In the Remarks section of the report, the examiner noted that the Veteran was a no show for x-rays in August 2016. The examiner ultimately opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale, the examiner stated that during service, the Veteran’s condition was acute only; that there was no chronicity of care; and that a nexus has not been established.

The Board finds that the August 2016 VA opinion is not fully responsive to the Board’s August 2015 Remand directive. The examiner did not specifically address the Veteran’s contentions surrounding the additional theory of causation – that is, the performance of duties associated with his MOS which included frequent heavy lifting and loading and unloading trucks in service caused his back disability. Thus, a remand is necessary to obtain an addendum opinion.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a new VA examination to determine the current severity of his service-connected right and left knee disabilities. The Veteran’s claims file, including this remand, should be made available for review by the examiner in conjunction with the examination. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. All indicated studies, including x-rays should be performed.

The examiner should record the results of range of motion testing of both knees for pain on both active and passive motion and in weight-bearing and non-weight-bearing or state why such testing is not warranted or not feasible in light of Correia v. McDonald, 28 Vet. App 158 (2016). The degree at which pain begins must also be documented.

The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so.

2. Schedule the Veteran for a new VA orthopedic AND neurological examination to determine the current severity of his service-connected right hand disabilities (residuals of a laceration and numbness, 5th finger (ulnar nerve)). The Veteran’s claims file, including this remand, should be made available for review by the examiner in conjunction with the examination. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. All indicated studies, including x-rays should be performed.

The examiner should record the results of range of motion testing of BOTH hands for pain on both active and passive motion and in weight-bearing and non-weight-bearing or state why such testing is not warranted or not feasible in light of Correia v. McDonald, 28 Vet. App 158 (2016). The degree at which pain begins must also be documented.

The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so.

3. Return the claims file to the examiner who performed the August 2016 examination (or another suitable VA examiner if the identified examiner is unavailable) and request an addendum opinion as to the etiology of the Veteran’s back condition.

The examiner should provide an opinion as to whether there is a 50 percent or better probability (whether it is at least as likely as not) that the Veteran’s lumbar spine disability had its onset in or is otherwise related to his active military service. The examiner must address the Veteran’s contention that his low back disability was caused by the performance of duties associated with his MOS which included frequent heavy lifting and loading and unloading trucks in service. The examiner should indicate whether any pathology/disease process associated with the Veteran’s back is consistent with the mechanism of injury claimed by the Veteran.

All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

4. Thereafter, readjudicate the Veteran’s claim on appeal. If the benefits sought remain denied, the Veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

(CONTINUED ON NEXT PAGE)

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

_________________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).

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