Citation Nr: 18132289 Decision Date: 09/06/18 Archive Date: 09/06/18 DOCKET NO. 15-12 186 DATE: September 6, 2018 ORDER Entitlement to service connection for right ear hearing loss is dismissed. Entitlement to service connection for a right wrist chronic radicular strain is granted. Entitlement to service connection for depression and anxiety is granted. Entitlement to service connection for right shoulder impingement syndrome is denied. Entitlement to service connection for left upper extremity radiculopathy is denied. Entitlement to service connection for right upper extremity radiculopathy is denied. REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to an increased rating for service-connected chronic neck strain is remanded. Entitlement to an increased rating for service-connected degenerative disc disease of the lumbar spine with myofascial pain syndrome of the thoracic spine is remanded. Entitlement to an increased rating for service-connected left lower extremity radiculopathy is remanded. Entitlement to an increased rating for service-connected right lower extremity radiculopathy is remanded. Entitlement to an increased rating for service-connected left leg shin splints is remanded. Entitlement to an increased rating for service-connected right leg shin splints is remanded. FINDINGS OF FACT 1. During the April 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the claim for entitlement to service connection for right ear hearing loss. 2. Resolving reasonable doubt in the Veteran’s favor, his right wrist chronic radicular strain began during active service. 3. Resolving reasonable doubt in the Veteran’s favor, his depression and anxiety are proximately due to his service-connected neck disability, back disability, and lower extremity radiculopathy. 4. The preponderance of the evidence is against finding that the Veteran has right shoulder impingement syndrome due to an in-service injury, event, or disease. 5. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of left upper extremity radiculopathy. 6. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of right upper extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal of the claim for entitlement to service connection for right ear hearing loss are met. 38 U.S.C. § 7105(b)(2); 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for service connection for right wrist chronic radicular strain are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for depression and anxiety are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 4. The criteria for service connection for right shoulder impingement syndrome are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for left upper extremity radiculopathy are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 6. The criteria for service connection for right upper extremity radiculopathy are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to June 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during an April 2018 videoconference hearing. A transcript of that hearing is associated with the claims file. Withdrawn Issue 1. Entitlement to service connection for right ear hearing loss Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In April 2015, the Veteran filed a substantive appeal of the RO’s January 2013 rating decision that denied his claim for entitlement to service connection for right ear hearing loss. During the April 2018 Board hearing, the Veteran expressed his desire to withdraw the appeal with regard to that issue. See Board Hearing Trans. at 2. The Board finds that the Veteran’s statement acknowledging his intention to withdraw the appeal, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). The Veteran has withdrawn his appeal regarding this issue, and, hence, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the issue, and it is dismissed. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if “the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.” Savage v. Gober, 10 Vet. App. 488, 498 (1997). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Allen v. Brown, 8 Vet. App. 374 (1995). 2. Entitlement to service connection for right wrist chronic radicular strain The Veteran contends that he has a right wrist disability that is related to his period of active service. The Board concludes that the Veteran has a right wrist chronic radicular strain that began during active service. 38 U.S.C. § 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran’s service treatment records reflect that he was treated for right hand and wrist pain in September 1985 after falling from a bicycle 6 weeks prior. The Veteran was afforded a VA examination in March 2013. The examiner diagnosed the Veteran with a chronic radicular ligament strain of the right wrist. He noted the Veteran’s history of falling on his wrist during service and that the Veteran reported intermittent discomfort in the hand over the next 3 years in service, mostly when doing push-ups. The Veteran reported ongoing complaints concerning his hand since discharge. The examiner opined that it is at least as likely as not that the chronic discomfort at the palmar base of the right hand is related to the injury in service. The rationale was that the service treatment records document pain in the volar base of the hand 6 weeks after the injury to the right wrist and the current discomfort is in the same location. The Veteran was afforded an additional VA examination in January 2015. The VA examiner noted the Veteran’s 1985 diagnosis of a chronic right wrist sprain and noted the Veteran’s reports of intermittent hand and wrist pain since that time. The examiner opined that it was not likely that the Veteran’s right wrist condition is related to the in-service injury. The examiner explained that the service treatment records document the 1985 injury but that there were no further follow-ups or complaints of a right wrist disability on the May 1988 separation examination. The injury occurred 30 years prior and there were no documented complaints until 2013. Further, the Veteran was diagnosed with severe bilateral carpal tunnel syndrome and right ulnar neuropathy. X-rays at the examination were unremarkable, showing no evidence of arthritis. The examiner opined that the Veteran’s right wrist decreased range of motion is probably due to his carpal tunnel syndrome, which was not documented in service. Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current right wrist chronic radicular strain is related to his in-service injury. The March 2013 and January 2015 VA opinions both indicate a full review of the record in addition to an examination of the Veteran. Further, both provided adequate rationales for their conclusions. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a right wrist chronic radicular strain is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for an acquired psychiatric disorder The Veteran asserts that he has an acquired psychiatric disorder related to his service-connected disabilities. VA treatment records document ongoing mental health treatment for depressive disorder not otherwise specified and panic disorder with agoraphobia. Additionally, a private March 2015 opinion indicates that the Veteran has depression and anxiety. Accordingly, the requirements of Wallin element (1) have been met. Service connection is currently in effect for a back disability, bilateral lower extremity radiculopathy, chronic neck strain, and bilateral shin splints. Additionally, as noted above, the Board has found evidence sufficient to grant service connection for a right wrist disability. Accordingly, the requirements of Wallin element (2) have been met. The Veteran was afforded a VA examination in January 2015 to address his claimed psychiatric disorder. The examiner noted that the Veteran’s diagnosis of panic disorder with features of anxiety and depression. The examiner also cited to VA mental health treatment records indicating the Veteran’s psychological stressors were employment, his marital relationship, and pain. The VA examiner opined that the Veteran’s diagnosis is “more likely than not related to post-military stressors and not likely related to service.” The examiner indicated that the Veteran did not have any mental health diagnosis or treatment in service and he was not diagnosed with a mental health disorder until many years after discharge. The examiner also found no evidence that the condition was aggravated by any service-connected conditions, despite the treatment records stating that pain was a current psychological stressor. The Veteran submitted a March 2015 opinion from P.W., Ph.D. indicating that the psychologist reviewed the Veteran’s service treatment records and post-service treatment records. P.W. opined that the Veteran suffers from “depression and anxiety secondary to chronic pain due to numerous orthopedic injuries.” He cited medical literature indicating that individuals with chronic pain have a higher risk of developing psychiatric symptoms. P.W. went on to note that the medication used to treat the Veteran’s chronic pain may have masked the symptoms of his depression, explaining the delay in seeking treatment for a mental health condition. The examiner concluded that it is more likely than not that the Veteran’s major depression is caused by his current service-connected degenerative disc disease of the lumbar spine with myofascial pain syndrome, left and right lower extremity radiculopathy, and chronic neck strain. Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current psychiatric disorder is related to a service-connected condition. The March 2015 private opinion is based upon a full review of the record and provides a thorough rationale for the conclusion that the Veteran’s psychiatric disorder is related to his service-connected disabilities. P.W. even pointed to medical literature relating chronic pain and mental disorders. Alternatively, while the VA examiner had the benefit of an examination of the Veteran, the provided opinion is deficient in addressing the connection between the Veteran’s pain and an acquired psychiatric disorder, vaguely attributing the disorder to “post-military stressors”. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for depression and anxiety is granted. See Gilbert, 1 Vet. App. at 53. 4. Entitlement to service connection for right shoulder impingement syndrome The Veteran contends that he has a right shoulder disability related to his period of active service. During a December 2012 VA examination, the examiner diagnosed right shoulder impingement syndrome. Accordingly, the requirements of Shedden element (1) have been met. Additionally, the Veteran’s service treatment records reflect treatment in December 1981 for right shoulder pain after he was hit by a closing elevator door. He was diagnosed with a somatic dysfunction in the neck which was shown to resolve. The requirements of Shedden element (2) have been met. Notwithstanding the above, the Board finds that the Veteran’s claim fails on Shedden element (3), evidence of a nexus. The Veteran submitted private treatment records dated in December 2004 reflecting complaints of right shoulder pain. The Veteran noted that the pain began in about October and that he was active with softball, basketball, and soccer. He noticed the pain while throwing a softball but he noticed some improvement since the onset. The records indicate that x-rays of his shoulder showed a type II acromion and he was diagnosed with rotator cuff tendinitis in the right shoulder. The Veteran was afforded a VA examination in December 2012. However, at that time, the Veteran’s claims file was unavailable. Accordingly, the examiner provided an opinion in January 2013 after reviewing the claims file. The examiner opined that the Veteran’s right shoulder impingement syndrome was less likely than not incurred in or caused by the claimed in-service injury. The rationale was that the Veteran was treated one time in service for upper back complaints that were not considered a shoulder issue. Additionally, the December 1981 notes reflect that the elevator door caused a condition in the neck and was not a true shoulder joint condition. He was treated at the time with no further treatment or complaints in the service treatment records. The examiner further noted that the Veteran’s separation examination was absent of any abnormality or complaints related to the right shoulder and there is no interim data proximate to discharge. Private treatment records dated in 2004, 16 years after discharge, indicate that the Veteran had right shoulder pain that started 2 months prior. He was diagnosed with rotator cuff tendonitis, for which there is no evidence of a nexus to service. As such, the examiner found that the Veteran’s right shoulder condition is not related to service. The Veteran submitted a November 2013 private opinion from Dr. J.E. finding that the initial in-service injury was a severe injury to the muscles and ligaments of the neck and right shoulder. The continued tightness and spasm in the neck and right shoulder have caused tendonitis and traumatic arthritis in the right shoulder joint. The examiner further noted that the Veteran has hypertrophy of the AC joint of the right shoulder and not the left, which is consistent with the initial severe injury from the elevator incident in service. During a January 2015 VA examination, the examiner noted that the Veteran was diagnosed with a right shoulder strain in 1981 after being struck by an elevator door. The Veteran indicated ongoing intermittent problems with his right shoulder since that time. The examiner stated that x-rays of the right shoulder dated in August 2011 were read as normal. The examiner opined that it is not likely that the Veteran’s current right shoulder condition is related to the injury in service in 1981. The rationale is that while the service treatment records reflect shoulder complaints in 1981, there was nothing noted on the 1988 separation examination. Further, private treatment records dated in 2004 describe a right shoulder problem of only several months’ duration and prior to that, he was a very active individual who played sports. The examiner found Dr. J.E.’s opinion that the Veteran sustained a probable rotator cuff tear with brachial plexus injury in 1981 unreasonable, as the Veteran had no documented right shoulder complaints until 2004. The examiner stated that the clinical examination was consistent with a right shoulder rotator cuff tear, of recent origin. The Veteran submitted an additional private opinion in February 2017 from Dr. C.B. who opined that the Veteran’s right shoulder rotator cuff injury is secondary to his military service injury. The rationale was that the Veteran’s military records note that he was sound upon entrance to service, he had a right shoulder injury in service, and his current symptoms show chronicity of symptoms. Further, Dr. C.B. stated that the Veteran’s treatment records do not support another more likely alternative explanation and the time lag between injury in service and current pathology is consistent with known medical principles. Dr. C.B. noted that no other physician has made a controverting opinion and that his opinion is consistent with Dr. J.E. During the April 2018 Board hearing, the Veteran indicated that he injured his right shoulder in service and continued to do the exercises he learned in physical therapy after he was discharged. He noted that he was not currently in treatment but he recalled that he was told his current shoulder disability was related to the in-service trauma. Based on the above, the Board finds service connection is not warranted for right shoulder impingement syndrome. First, despite contentions of continuity of symptomatology, the Veteran has not been diagnosed with a chronic condition. Indeed, the January 2015 VA examiner noted that August 2011 x-rays of the right shoulder were normal and did not show degenerative joint disease, or arthritis. As such, presumptive service connection for a chronic condition is not for application in this case. Considering direct service connection, the Board affords the most probative value to the opinions of the VA examiners. Both examiners reviewed the claims file and examined the Veteran, acknowledging his reported history, contentions, and current complaints. After reviewing the claims file, the examiners both failed to attribute the Veteran’s impingement syndrome to an in-service incident. Additionally, the private examiners provided inadequate opinions. First, the November 2013 opinion states that the Veteran has traumatic arthritis in his right shoulder, which has not been shown by the record. Additionally, the February 2017 opinion relied heavily on the Veteran’s reports of continuity of symptomatology. However, the Veteran’s reports are inconsistent with his treatment records. As noted above, in December 2004, the Veteran sought treatment for right shoulder pain that he reported started in October 2003. The 2004 statements are highly probative and directly contradict his more recent claims of ongoing right shoulder pain since discharge. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). As such, the Veteran’s statements are afforded limited probative value. In sum, there is no evidence of a chronic right shoulder condition in service, and the preponderance of the competent medical evidence does not link the condition to service. The preponderance of the evidence is against the claim, and service connection is denied. The benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. 5. Entitlement to service connection for left upper extremity radiculopathy 6. Entitlement to service connection for right upper extremity radiculopathy The Veteran asserts that he has bilateral upper extremity radiculopathy related to his service-connected neck disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, or whether any current disability has been caused or aggravated by a service-connected disability. The Board concludes that the Veteran does not have a current diagnosis of radiculopathy of the left or right upper extremity and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1131, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). During the April 2018 Board hearing, the Veteran reported numbness and tingling in his fingers that he related to his service-connected neck disability. The Veteran submitted a November 2013 private opinion from Dr. J.E. who noted that the Veteran reported tingling down his right arm after an industrial elevator landed on the right side of his neck and shoulder in 1981 during service. The Veteran further described current pain and tingling in his right arm stemming from a shoulder disability. Dr. J.E. diagnosed the Veteran with right-sided radiculopathy into the right hand. The March 2014 VA examiner specifically indicated that the Veteran does not have radicular pain or any other signs or symptoms due to radiculopathy. The January 2015 VA examiner also noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy related to his neck disability on examination. The Veteran’s treatment records include electromyography (EMG) results from April 2014 noting that the Veteran had carpal tunnel syndrome in both wrists and demyelinating ulnar neuropathy at the elbow, but no cervical radiculopathy, plexopathy, or myopathy. The Veteran submitted a February 2017 private opinion from Dr. C.B. indicating that the Veteran reported numbness, tingling, and loss of strength and coordination in both of his upper extremities during the November 2013 private evaluation with Dr. J.E. Dr. C.B. attributed these symptoms to cervical spine radiculopathy. Based on the above, the Board finds that the Veteran does not have right or left upper extremity radiculopathy and has not had such at any point during the appeal period. While Dr. J.E. indicated that the Veteran had pain and tingling in his right arm, he indicated such in the context of describing the Veteran’s shoulder disability and found it only in the right arm. His reports of pain and tingling in the right arm are inconsistent with the VA examinations which clearly indicate that the Veteran denied such symptoms. Additionally, Dr. C.B. inaccurately indicated that the Veteran demonstrated bilateral upper extremity radiculopathy during the November 2013 examination. There is also no evidence of any diagnostic tests confirming the presence of upper extremity radiculopathy. Indeed, the only EMG of record found that there was no cervical radiculopathy. Consequently, the Board affords more probative value to the VA examinations of record, which are shown to be consistent with the treatment records and based on a thorough examination of the Veteran. While the Veteran believes that he has a current diagnosis of bilateral upper extremity radiculopathy, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires special medical knowledge and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Brown, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim). Accordingly, service connection for right and left upper extremity radiculopathy is not warranted. The preponderance of the evidence is against the claims, and service connection is denied. The benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. REASONS FOR REMAND 1. Entitlement to service connection for a left foot disability is remanded. 2. Entitlement to service connection for a right foot disability is remanded. The Veteran claims service connection for bilateral foot disabilities which he states had their onset in service. He attributes the conditions to running and marching in boots that did not provide foot support. The Veteran said he was given some physical therapy exercises to help relieve the pain but noted ongoing pain since discharge. A July 2012 VA examination indicates that the Veteran has bilateral foot hallux valgus that was not proximately due to or the result of his service-connected shin splints. No opinion was provided regarding direct service connection. A November 2013 private opinion states that the Veteran has bilateral plantar fasciitis and tarsal tunnel syndrome, but does not indicate what diagnostic tools were used to make such diagnoses. Additionally, the March 2017 private opinion inaccurately indicates that the Veteran had a right hallux valgus in service. Accordingly, an adequate opinion should be obtained addressing the etiology of any right or left foot disability diagnosed during the appeal period. 3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for a right knee disability is remanded. During the April 2018 Board hearing, the Veteran asserted that his right and left knee disabilities are related to his service-connected back disability. Specifically, he stated that several doctors have said that his gait is affected by his back which impacts his knees. He noted that he heavily relies on his legs to support his back, making use of a cane and a cart. A July 2012 VA opinion finds that the Veteran’s knee disabilities are less likely than not due to or the result of his service-connected shin splints. A January 2015 VA examiner also found no causal relationship between shin splints and the Veteran’s knee disabilities. The examiner further noted that there is no evidence of knee problems in the Veteran’s service treatment records. Although VA has obtained an opinion regarding whether the Veteran’s knee disabilities are secondary to his service-connected shin splints, an opinion should be obtained regarding whether the disabilities are related to or aggravated by the Veteran’s service-connected back disability. 5. Entitlement to an increased rating for service-connected chronic neck strain is remanded. 6. Entitlement to an increased rating for service-connected degenerative disc disease of the lumbar spine with myofascial pain syndrome of the thoracic spine is remanded. 7. Entitlement to an increased rating for service-connected left lower extremity radiculopathy is remanded. 8. Entitlement to an increased rating for service-connected right lower extremity radiculopathy is remanded. 9. Entitlement to an increased rating for service-connected left leg shin splints is remanded. 10. Entitlement to an increased rating for service-connected right leg shin splints is remanded. With respect to the Veteran’s increased rating claims, the Board finds that updated VA examinations should be obtained. The last VA examination to assess the severity of the Veteran’s bilateral lower extremity radiculopathy, neck disability, back disability, and bilateral shin splints was in January 2015. During the January 2018 Board hearing, the Veteran reported an increase in severity of his symptoms with respect to each disability. In light of the above, the Board finds that updated VA examinations are necessary to ascertain the current severity of these disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain any outstanding medical treatment records related to the Veteran’s claims. 2. Following the development above, obtain an addendum opinion regarding the nature and etiology of any left or right foot disability diagnosed during the appeal period. If the examiner finds that an additional examination is required, one should be arranged. The claims file must be reviewed and the examiner must indicate that such review occurred. The examiner should respond to the following: (a.) Note all left and right foot diagnoses existing during the appeal period, to include hallux valgus and plantar fasciitis. (b.) For each diagnosis, is it at least as likely as not (a probability of 50 percent or greater) that the foot disability had its onset it or is otherwise related to the Veteran’s period of active service, to include marching and running in boots? All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 3. After obtaining any updated treatment records, obtain an addendum opinion regarding the nature and etiology of the Veteran’s diagnosed left and right knee degenerative joint disease/patellofemoral pain syndrome. If the examiner finds that an additional examination is required, one should be arranged. The claims file must be reviewed and the examiner must indicate that such review occurred. The examiner should opine: (a.) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s left or right knee degenerative joint disease/patellofemoral pain syndrome had its onset it or is otherwise related to the Veteran’s period of active service; (b.) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s left or right knee degenerative joint disease/patellofemoral pain syndrome was caused by his service-connected back disability; or (c.) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s left or right knee degenerative joint disease/patellofemoral pain syndrome was aggravated by his service-connected back disability. The term “aggravated” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 4. After obtaining any updated treatment records, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected neck, back, bilateral lower extremity radiculopathy, and bilateral shin splint disabilities. The claims file must be reviewed and the examiner must indicate that such review occurred. Based on the Veteran’s reports and the results of examination, the VA examination report should include the criteria necessary to rate the disabilities on appeal. With respect to his neck and back disabilities, pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the back cannot be tested on “weight-bearing,” the examiner must specifically indicate that such testing cannot be done. Additionally, with respect to the Veteran’s service-connected radiculopathy, the examiner is asked to: (a.) identify the specific nerve(s) so affected, and (b.) indicate the degree of paralysis (i.e. complete paralysis or mild, moderate, or severe incomplete paralysis) in the affected nerve(s). All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor
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