Citation Nr: 1760259
Decision Date: 12/27/17 Archive Date: 01/02/18
DOCKET NO. 14-18 223 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York
1. Entitlement to an initial disability rating in excess of 10 percent for left (minor) shoulder rotator cuff tear with degenerative changes (“left shoulder disability”).
2. Entitlement to an initial disability rating in excess of 10 percent for left ankle osteophyte (“left ankle disability”).
3. Entitlement to an initial disability rating in excess of 10 percent for left knee mild degenerative joint disease (“left knee disability”).
4. Entitlement to an initial disability rating in excess of 10 percent for right knee mild degenerative joint disease (“right knee disability”).
5. Entitlement to an initial disability rating in excess of 10 percent for migraine headaches.
Veteran represented by: New York State Division of Veterans’ Affairs
WITNESS AT HEARING ON APPEAL
The Veteran and his wife
ATTORNEY FOR THE BOARD
T. Talamantes, Associate Counsel
The Veteran served on active duty from October 1988 to October 2010.
These matters come before the Board of Veterans Appeals’ (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.
The Veteran testified before the undersigned Veterans Law Judge in a July 2017 video conference hearing. A transcript of that hearing has been associated with the file.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
After a thorough review of the Veteran’s claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the issue on appeal.
The Veteran was last provided VA examinations in connection with his service-connected shoulder, ankle, and bilateral knee disabilities in December 2014. Subsequent to the December 2014 VA examinations, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. After reviewing the VA examinations of record, the Board finds that they are incomplete and require further medical guidance, in light of the recent holding in Correia. As the previous VA examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, new examinations are necessary to decide the claims.
Additionally, the United States Court of Appeals for Veterans’ Claims (Court) recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.
In the December 2014 VA examinations, the examiner noted the Veteran’s reports of flare-ups with respect to his left shoulder, left knee, and right knee, and included the reported frequency, severity and duration. However, she did not estimate the Veteran’s functional loss due to flare-ups or provide adequate rationale as to why this estimation could not be done.
With respect to the Veteran’s migraine headaches, the Board finds that an additional examination is required to determine the current severity.
During the July 2017 hearing, the Veteran provided testimony describing how debilitating his migraine headaches are. He testified that he takes medication daily to “keep them at bay”, stating if he fails to do so the resulting migraine will cause him to become nauseous, to vomit and “debilitate” him “so to speak.” He indicated that the frequency of the attacks is dependent on his schedule, eating habits, and whether he takes his medication.
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records documenting treatment for left shoulder disability, left ankle disability, bilateral knee disabilities, and migraine headaches. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records.
2. The AOJ should schedule the Veteran for an appropriate VA examination(s) to determine the current nature and severity of his left shoulder disability, left ankle disability, and bilateral knee disabilities. The Veteran’s electronic claims file should be made available to and reviewed by the examiner.
The AOJ should ensure that the examiner provides all information required for rating purposes.
The examiner is asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for these disabilities AND their opposite, paired joint. See Correia v. McDonald, 28 Vet. App. 158 (2017). 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.
In addition, the examiner should provide information concerning the functional impact of the Veteran’s service-connected left shoulder disability, left ankle disability, and bilateral knee disabilities.
The VA examiner should conduct range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-up, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically.
The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare-up opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation.
All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.
3. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his migraine headaches. The Veteran’s electronic claims file should be made available to and reviewed by the examiner.
The AOJ should ensure that the examiner provides all information required for rating purposes.
After reviewing the evidence of record and interviewing/examining the Veteran, the examiner must provide responses to the following:
(a) The examiner must identify all symptoms associated with the Veteran’s migraine headaches and note their severity, frequency, and duration. The examiner must indicate whether the Veteran’s subjective complaints, are consistent with the clinical findings/manifestations of his service-connected migraine headache disability.
(b) The examiner must indicate whether the Veteran’s migraine headaches are manifested by characteristic prostrating attacks. The examiner must also discuss the medication treatment regimen prescribed (and the relief/additional symptomatology (e.g., drowsiness) that results), as well as the level of functioning remaining during the headaches, both with and without medication.
Finally, the examiner must describe the frequency and duration of any characteristic prostrating attacks and indicate whether the headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.
A complete rationale for all opinions must be provided. The explanation in response to this question should cite to the factual data in the record that supports that the Veteran’s migraine headaches are/are not characterized by characteristic prostrating attacks and productive of severe economic inadaptability. The explanation must also support the findings regarding duration, frequency, and level of functioning remaining when they occur. .
4. After completing the requested actions and any additional development warranted, the AOJ should review the expanded record and determine if the appeal can be granted. If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case. After an opportunity to respond, the case should be returned to the Board for appellate review.
The Veteran 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).
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. §§ 5109B, 7112 (2012).
Veterans Law Judge, Board of Veterans’ Appeals
Under 38 U.S.C. § 7252 (2012), 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).