Citation Nr: 18131238
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-24 905A
DATE:	August 31, 2018
ORDER
The appeal of the issue of entitlement to an increase in a 10 percent rating for postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee, is dismissed.  
A separate 20 percent rating is granted for right knee dislocated semilunar cartilage, subject to the laws and regulations governing the payment of monetary benefits.  
An initial higher rating of 30 percent for gastroesophageal reflux disease (GERD) is granted, subject to the law and regulations governing the payment of monetary awards.  
An initial higher (compensable) rating for erectile dysfunction is denied.
REMANDED
Entitlement to service connection for a left shoulder disability is remanded.  
Entitlement to service connection for a right wrist disability is remanded.  
Entitlement to service connection for a left wrist disability is remanded.  
Entitlement to service connection for a lower gastrointestinal disorder is remanded.  
Entitlement to service connection for pseudofolliculitis is remanded.  
Entitlement to an initial rating higher than 10 percent for postoperative residuals of a laminectomy is remanded.  
FINDINGS OF FACT
1.  At the February 2018 hearing before the Board, the Veteran testified that a 10 percent rating for postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee, with a 20 percent rating for right knee dislocated semilunar cartilage, would satisfy his appeal.  
2.  Throughout the appeal, the Veteran’s postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee has also been productive of dislocated semilunar cartilage, with locking, pain, and effusion into the joint.  
3.  Throughout the appeal period, the Veteran’s GERD is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  
4.  Throughout the appeal period, the Veteran’s erectile dysfunction is manifested by difficulty in achieving erections, but without any deformity.  
CONCLUSIONS OF LAW
1.  The criteria for withdrawal of the appeal of the issue of entitlement to an increase in a 10 percent rating for postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee, have been met.  38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.204 (201717).  
2.  The criteria for a separate 20 percent rating for right knee dislocated semilunar cartilage have been met.  38 U.S.C.A § 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, Diagnostic Code 5258 (2017).  
3.  The criteria for an initial higher 30 percent rating for GERD have been met.  38 U.S.C.A §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017).  
4.  The criteria for an initial higher (compensable) rating for erectile dysfunction have not been met.  38 U.S.C.A §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.20, 4.31, 4.115b, Diagnostic Code 7522 (2017).  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the Air Force from April 1990 to April 2000 and from August 2000 to August 2011.  
This matter is before the Board of Veterans’ Appeals (Board) on appeal of September 2012 and February 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  The September 2012 RO decision granted service connection and a 10 percent rating for GERD, effective September 1, 2011, and granted service connection and a noncompensable rating for erectile dysfunction, effective September 1, 2011.  By this decision, the RO also denied an increase in a 10 percent rating for postoperative residuals of torn cruciate ligament and a torn lateral meniscus of the right knee (residuals, torn anterior cruciate and torn lateral meniscus, postoperative, right knee).  The RO further denied service connection for a left shoulder disability; a right wrist disability; a left wrist disability; a lower gastrointestinal disorder (listed as a lower abdominal condition, with pain); and for pseudofolliculitis.  
The February 2013 RO decision granted service connection and a 10 percent rating for postoperative residuals of a laminectomy (status post laminectomy), effective September 1, 2011.  
In February 2018, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge.  
The issues have been recharacterized to comport with the evidence of record.  
1.  Withdrawn Claim
The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (West 2014).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the Veteran or by his authorized representative.  38 C.F.R. § 20.204.  
At the February 2018 Board hearing, the Veteran testified that he was satisfied with the 10 percent rating for his service-connected postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee, if a separate 20 percent rating was granted for right knee dislocated semilunar cartilage.  As discussed below, the Board has granted a separate 10 percent rating for right knee dislocated semilunar cartilage.  Therefore, the Board interprets the Veteran’s statement as a withdrawal of his appeal with regard to the claim for entitlement to an increase in a 10 percent rating for postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee.  Accordingly, the Board does not have jurisdiction to review that claim, and it is dismissed.  
2.  Right Knee Semilunar Cartilage
Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4 (2017).  
When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  
The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009).  
In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”).
The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  
As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996).  
The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just.  38 C.F.R. § 4.6 (2017).  It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2017).  
The issue on appeal is solely entitlement to an increased rating for left knee instability, status post a meniscal tear.  
Dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, is rated 20 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5258.  
The Veteran contends that his service-connected postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee is worse than contemplated by his currently assigned disability rating and that an increased rating is therefore warranted for that service-connected disability.  
The Board finds that a separate 20 percent rating is warranted under Diagnostic Code 5258 for right knee dislocated semilunar cartilage, as a result of locking, pain, and effusion into the joint that the Veteran experiences.  A March 2018 private knee and lower leg conditions examination report from S. Nazir, M.D., indicates that the Veteran has less movement than normal in the right knee (due to ankylosis, limitation or blocking, adhesions, tendon-tie ups, contracted scars, etc.).  Dr. Nazir also reported that the Veteran’s right knee had pain on movement, disturbance of locomotion, an interference with standing.  Additionally, at the February 2018 Board hearing, the Veteran specifically testified that he had locking of the right knee related to his service-connected postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee.  The Board notes that the Veteran is competent to report his symptoms as to his right knee, such as pain and locking.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006).  According to the rating schedule, a Veteran is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint under Diagnostic Code 5258.  Thus, the Board finds that a separate 20 percent rating is warranted under Diagnostic Code 5258 to compensate the Veteran for the symptoms of his left knee dislocated semilunar cartilage.  See 38 C.F.R. § 4.20; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that the evaluation of a knee disability under DC 5257 and DC 5260 or 5261 do not preclude, as a matter of law, a separate evaluation under DC 5258).  
At the February 2018 hearing before the Board, the Veteran indicated that he was seeking a 10 percent rating for his service-connected postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee (which is already assigned), with a separate 20 percent rating for right knee dislocated semilunar cartilage, and that such would satisfy his appeal.  Because the Veteran has essentially limited his appeal to a separate 20 percent rating for right knee dislocated semilunar cartilage, and since the Board finds that the evidence supports such entitlement, there is no need to discuss whether the Veteran’s right knee dislocated semilunar cartilage warrants a rating higher than a separate 20 percent rating.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  
3.  GERD
There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition.  Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title “Diseases of the Digestive System,” do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14; 38 C.F.R. § 4.113 (2017).
Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other.  A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.114.
The RO has rated the Veteran’s GERD under Diagnostic Code 7346, which pertains to a hiatal hernia.  Under Diagnostic Code 7346, a 10 percent rating is warranted for a hiatal hernia manifested by two or more of the symptoms required for a 30 percent rating of less severity.  A 30 percent rating is warranted where the disability is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A maximum 60 percent rating requires symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health.  38 C.F.R. § 4.114, Diagnostic Code 7346.  
The Veteran contends that his GERD is worse than contemplated by his currently assigned disability rating and that a higher rating is therefore warranted for that service-connected disability.  He specifically maintains that his GERD causes symptoms such as severe heartburn, pressure on his stomach, dysphagia, regurgitation, nausea and vomiting.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  
A May 2011 VA general medical examination report does not specifically indicate that the Veteran’s claims file was reviewed.  The Veteran reported that he had suffered from acid reflux since 1995.  He stated that the condition caused throat irritation that it did not affect his body weight.  The Veteran indicated that he had dysphagia, heartburn, reflux, and regurgitation of stomach contents, as well as nausea and vomiting.  He maintained that he had no epigastric distress, scapular pain, arm pain, hematemesis, or passing of black-tarry stools.  The Veteran related that his symptoms occurred intermittently, as often as once a month, with each occurrence lasting for an unknown period.  It was noted that the Veteran had twelve attacks within the past year.  The Veteran stated that his ability to perform daily functions during flare-ups was unaffected, and that he was not presently receiving any treatment for his condition.  He indicated that he was never hospitalized and that he did not undergo surgery for his GERD.  It was noted that the Veteran reported that he did not experience any overall functional impairment from the condition.  
The examiner reported that an examination of the Veteran’s abdomen revealed no evidence of striae on the abdominal wall or distention of superficial veins.  The examiner stated that there was no evidence of ostomy, or tenderness to the abdomen or flank, with palpation.  It was noted that there were no palpable masses, splenomegaly, ascites, liver enlargement, an aortic aneurysm, or a ventral hernia.  The examiner indicated that there was no inguinal hernia.  The examiner reported that an upper gastrointestinal series was abnormal with findings of gastroesophageal reflux.  
The diagnoses included GERD.  The examiner indicated that the Veteran’s subjective factors were his history and that the objective factors were the upper gastrointestinal findings.  The examiner maintained that the Veteran’s GERD/hiatal hernia condition did not cause anemia and that there were no findings of malnutrition.  
A March 2014 VA esophageal conditions examination report includes a notation that the Veteran’s claims file was reviewed.  It was noted that Veteran was diagnosed with GERD in 2000 prior to being released from the military at that time.  The Veteran reported that he had infrequent episodes of epigastric distress; pyrosis (heartburn); and reflux.  
The examiner reported that the Veteran did not have an esophageal stricture, spasm of the esophagus (cardiospasm or achalasia), or acquired diverticulum of the esophagus.  It was noted that the Veteran did not have any scars related to his GERD.  The examiner indicated that there were no other pertinent physical findings, complications, conditions, signs and/or symptoms.  The examiner stated that an upper gastrointestinal series in 2011 shows GERD.  
The diagnosis was GERD.  The examiner indicated that the Veteran’s service-connected GERD did not impact his ability to work.  
Recent VA treatment records show that the Veteran was treated for his GERD and that he was noted to be taking Zantac for that condition.  Such records also show treatment for bilateral shoulder pain on numerous occasions.  
Viewing all the evidence, the Board finds that there is a reasonable basis for finding that the Veteran’s GERD warrants a 30 percent rating under Diagnostic Code 7346.  The examiner, pursuant to the May 2011 VA general medical examination report, noted that the Veteran reported GERD symptoms of dysphagia, heartburn, reflux, regurgitation of stomach contents, as well as nausea and vomiting.  It was also noted that the Veteran had twelve attacks from his GERD symptoms during the past year.  A March 2014 VA esophageal conditions examination report notes that the Veteran reported that he had episodes of epigastric distress, pyrosis, and reflux.  In light of the evidence of record, the Board finds that the Veteran’s symptoms more nearly approximate persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, as required for an increased 30 percent rating under Diagnostic Code 7346.  
As this is an initial rating case, consideration has been given to “staged ratings” (different percentage ratings for different periods of time, since the effective date of service connection, based on the facts found).  Fenderson, 12 Vet. App. at 119.  However, staged ratings are not indicated in the present case, as the Board finds that the Veteran’s GERD has been 30 percent disabling throughout the appeal period.  Thus, an initial higher rating to 30 percent for GERD is granted.  
At the February 2018 hearing before the Board, the Veteran indicated that he was seeking a 30 percent rating for his service-connected GERD and that a grant of a 30 percent rating would satisfy his appeal.  Because the Veteran has limited his appeal to a 30 percent rating, and since the Board finds that the evidence supports such entitlement, there is no need to discuss whether the Veteran’s GERD warrants a rating higher than 30 percent.  See AB, 6 Vet. App. at 35, 38.  
In reaching this determination, the Board has taken into consideration that the Veteran has been taking medication throughout the appeal period to ameliorate the severity of his gastrointestinal disability.  Such ameliorative effects cannot be directly taken into account when considering which disability rating to assign because the applicable diagnostic codes do not contemplate the effects of medication.  See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).
4.  Erectile Dysfunction
When a condition is not listed in the schedule, it will be permissible to rate it under a closely-related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20 (2015).  The Veteran’s service- connected erectile dysfunction may be rated by analogy to penis deformity, with loss of erectile power.  38 C.F.R. §§ 4.20, 4.115(b) Diagnostic Code 7522 (2015).  The Board can identify no more appropriate diagnostic code and the Veteran has not identified one.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  
Diagnostic Code 7522 provides a single 20 percent rating where the evidence shows deformity of the penis with loss of erectile power.  38 C.F.R. § 4.115(b), Diagnostic Code 7522.  When the requirements for a compensable rating of a diagnostic code are not shown, a 0 percent rating is assigned. 38 C.F.R. § 4.31.  
The Board observes that recent VA treatment records, as well as a May 2011 VA general medical examination report, indicate that the Veteran has erectile dysfunction.  The Board observes, however, that none of the evidence of record indicates that the Veteran has a penis deformity.  The Board notes that at a February 2018 hearing before the Board, the Veteran testified that he did not have a deformity of the penis.  
The medical evidence does not show any penile deformity.  Although there is evidence of the Veteran reporting an inability to achieve and/or maintain erections, there is essentially no evidence of any testicular or penile deformities.  Absent evidence of penile deformity, even though there is erectile dysfunction, a compensable rating is not warranted under Diagnostic Code 7522.  As the requirements for a compensable rating under Diagnostic Code 7522 are not met, a noncompensable (0 percent) rating is proper pursuant to 38 C.F.R. § 4.31.  
As this is an initial rating case, consideration has been given to “staged ratings” (different percentage ratings for different periods of time, since the effective date of service connection, based on the facts found).  Fenderson, 12 Vet. App. at 119.  However, staged ratings are not indicated in the present case, as the Board finds that the Veteran’s erectile dysfunction has been 0 percent disabling throughout the appeal period.  
As the preponderance of the evidence is against a compensable rating for erectile dysfunction, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49.  
REASONS FOR REMAND
The remaining issues on appeal are entitlement to service connection for a left shoulder disability; entitlement to service connection for a right wrist disability; entitlement to service connection for a left wrist disability; entitlement to service connection for a lower gastrointestinal disorder; entitlement to service connection for pseudofolliculitis; and entitlement to an initial rating higher than 10 percent for postoperative residuals of a laminectomy.  
The Veteran is service-connected for GERD.  He is also service-connected for postoperative residuals of a torn anterior cruciate ligament and a torn lateral meniscus of the right knee; patellofemoral syndrome of the left knee with recurrent subluxation; patellofemoral syndrome of the left knee with limitation of flexion; postoperative residuals of a laminectomy; dermatitis; erectile dysfunction; a scar postoperative a laminectomy; and a scar status post right knee surgery.  The Board has also granted a separate 20 percent rating for right knee dislocated semilunar cartilage.  
The Veteran contends that he has a left shoulder disability; right and left wrist disabilities; a lower gastrointestinal disorder; and pseudofolliculitis that are all related to service.  The Board must also consider whether the Veteran has a lower gastrointestinal disorder that is caused or aggravated by his service-connected GERD.  
The Veteran is competent to report having left shoulder problems; right and left wrist problems; gastrointestinal problems; and skin problems, during service and since service.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  
The Veteran served on active duty in the Air Force from April 1990 to April 2000 and from August 2000 to August 2011.  
The Veteran’s service treatment records show treatment for left shoulder problems; right wrist problems; left wrist problems; gastrointestinal problems, including lower abdominal and bowel complaints; and for pseudofolliculitis.  
A May 2011 VA general medical examination report, while the Veteran was still in service, does not specifically include a notation that the Veteran’s claims file was reviewed.  As to diagnoses, the examiner indicated that there was no diagnosis of a left shoulder condition because there was no pathology to render a diagnosis.  The examiner also maintained that diagnoses of a right and left wrist disabilities were not possible because Tinnel and Phalen tests were negative and an electromyograph was needed.  The examiner found that there was no diagnosis of a lower abdominal condition because there was no pathology to render a diagnosis.  The examiner further indicated that there was no diagnosis of pseudofolliculitis barbae because there was no pathology to render a diagnosis.  
Post-service private and VA treatment records show treatment for left wrist and left shoulder complaints.  Such records do not specifically show treatment for right wrist problems; a lower gastrointestinal disorder; or pseudofolliculitis.  
In light of the evidence of record, and as the Veteran was solely provided a VA general medical examination in May 2011, during his second period of service, the Board finds that the Veteran must be afforded VA examinations, with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims file, as to his claims for service connection for a left shoulder disability; a right wrist disability; a left wrist disability; a lower gastrointestinal disorder, and for pseudofolliculitis.  Such examinations must be accomplished on remand.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  
As to the Veteran’s claim for a higher rating for his postoperative residuals of a laminectomy, the Board observes that he was last afforded a VA back conditions examination in January 2013.  Since that time, the Veteran has received additional treatment for his service-connected postoperative residuals of a laminectomy.  For example, a private February 2018 back conditions examination report from S. Nazir, M.D., relates diagnoses of degenerative disc disease and radiculopathy.  Additionally, at the February 2018 Board hearing, the Veteran essentially testified that his service-connected postoperative residuals of a laminectomy had worsened.  
The Board observes that the Veteran has not been afforded a VA examination, as to his service-connected postoperative residuals of a laminectomy in over 5 years.  Additionally, the record clearly raises a question as to the current severity of his service-connected disability.  As such, the Board finds it necessary to remand this matter to afford him an opportunity to undergo a contemporaneous VA examination.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).  
Additionally, the Board notes that the U.S Court of Appeals for Veteran’s Claims (Court) has issued decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopaedic examinations.  The Court in Correia 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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.”  In light of these decisions, and as the findings pursuant to the January 2013 VA back conditions examination report is inadequate, the Board finds that a new VA examination should be provided addressing the Veteran’s service-connected postoperative residuals of a laminectomy.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Snuffer, 10 Vet. App. at 400, 403.  
The matters are REMANDED for the following action:
1.  Ask the Veteran to identify all medical providers who have treated him for left shoulder problems; right and left wrist problems; lower gastrointestinal problems; for pseudofolliculitis; and for low back problems, since October 2016.  After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder.  Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself.  
2.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms regarding his claimed left shoulder disability; right wrist disability; left wrist disability; lower gastrointestinal disorder; and pseudofolliculitis, as well as the nature, extent, and severity of his postoperative residuals of a laminectomy and the impact of that condition on his ability to work.  He should be afforded an appropriate amount of time to submit this lay evidence.  
3.  Schedule the Veteran for an appropriate VA examination to determine the onset and/or etiology of his claimed left shoulder disability; right wrist disability; and left wrist disability.  The entire claims file must be reviewed by the examiner.  The examiner must diagnose all current left shoulder disabilities; right wrist disabilities; and left wrist disabilities.  
Based on a review of the claims file, examination of the Veteran, and generally accepted medical principles, the examiner must provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not that any currently diagnosed left shoulder disabilities; right wrist disabilities; and left wrist disabilities, are related to and/or had their onset during his periods of service.  
The examiner must specifically acknowledge and discuss the Veteran’s treatment for left shoulder, right wrist, and left wrist problems during service, and any reports by the Veteran of left shoulder, right wrist, and left wrist problems during service and since service.  
4.  Schedule the Veteran for an appropriate VA examination(s) to determine the onset and/or etiology of his claimed lower gastrointestinal disorder and pseudofolliculitis.  The entire claims file must be reviewed by the examiner. The examiner(s) must diagnose all lower gastrointestinal disorders, and specifically indicate whether the Veteran has diagnosed pseudofolliculitis. 
Based on a review of the claims file, examination of the Veteran, and generally accepted medical principles, the examiner(s) must provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not that any currently diagnosed lower gastrointestinal disorders and pseudofolliculitis are related to and/or had their onset during his period of service.  
The examiner(s) must specifically acknowledge and discuss the Veteran’s treatment for lower gastrointestinal complaints and pseudofolliculitis during service, and any reports by the Veteran of lower gastrointestinal problems and skin problems since service.  
The examiner(s) must further opine as to whether the Veteran’s service-connected GERD, or any other service-connected conditions, caused or aggravated any currently diagnosed lower gastrointestinal disorders.  The term “aggravation” means a permanent increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms.  
If aggravation of any diagnosed lower gastrointestinal disorders by the Veteran’s service-connected GERD, or any other service-connected conditions, is found, the examiner must attempt to establish a baseline level of severity of the diagnosed lower gastrointestinal disorders prior to aggravation by the service-connected disabilities.  
5.  Schedule the Veteran for a VA examination to determine the extent and severity of his service-connected postoperative residuals of a laminectomy.  The claims file must be reviewed by the examiner.  All indicated tests must be conducted, including x-ray, and all symptoms associated with the Veteran’s service-connected postoperative residuals of a laminectomy must be described in detail.  Specifically, the examiner must conduct a thorough orthopedic examination of the Veteran’s service-connected postoperative residuals of a laminectomy, and provide diagnoses of any pathology found.  
In examining the thoracolumbar spine full range of motion testing must be performed where possible.  The joints involved must be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joints.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so.  The examiner should describe any pain, weakened movement, excess fatigability, instability of motion, and incoordination that is present.  The examiner must also state whether the examination is taking place during a period of flare-ups.  If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including the 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.  
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 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).  
The examiner must specifically indicate whether the Veteran has unfavorable ankylosis of the entire thoracolumbar spine.  The examiner must also state whether the thoracolumbar spine disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes.  The examiner must further discuss the nature and severity of any right and left-sided radiculopathy or neuropathy found to be present and state whether the Veteran has any other neurological impairment, related to his thoracolumbar spine disability.  

 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. D. Regan, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.