judge_norm: EMILY TAMLYN

judge_role: Acting Veterans Law Judge

text: New and material evidence has been received to substantiate the claim for service connection for Parkinson’s disease, to include right hand tremor and as due to herbicide exposure, and the petition to reopen is granted.

text: Entitlement to service connection for Parkinson’s disease, to include a right hand tremor, and as due to herbicide exposure, is remanded.

text:
��Citation Nr: 21005000

Decision Date: 01/28/21	Archive Date: 01/28/21

DOCKET NO. 19-31 355

DATE: January 28, 2021

ORDER

New and material evidence has been received to substantiate the claim for service connection for Parkinson s disease, to include right hand tremor and as due to herbicide exposure, and the petition to reopen is granted.

REMANDED

Entitlement to service connection for Parkinson s disease, to include a right hand tremor, and as due to herbicide exposure, is remanded.

FINDINGS OF FACT

1. A May 2015 rating decision denied the Veteran s claim of entitlement to service connection for Parkinson s disease, to include right hand tremor and as due to herbicide exposure.  The Veteran was notified of his appellate rights but did not submit new and material evidence within one year nor complete an appeal of the rating decision.

2. Evidence received since the May 2015 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for Parkinson s disease, to include right hand tremor and as due to herbicide exposure, and raises a reasonable possibility of substantiating the Veteran s claim of service connection.

CONCLUSIONS OF LAW

1. The May 2015 rating decision that denied entitlement to service connection for Parkinson s disease, to include right hand tremor and as due to herbicide exposure, is final. 38 U.S.C. � 7105 (2012); 38 C.F.R. �� 3.104, 20.302, 20.1103 (2019).

2. New and material evidence has been presented to reopen the claim of entitlement to service connection for Parkinson s disease, to include right hand tremor and as due to herbicide exposure. 38 U.S.C. � 5108 (2012); 38 C.F.R. � 3.156 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from March 1966 to March 1968.

According to the Veteran s October 2019 VA Form 9, Appeal to Board of Veterans  Appeals, he requested a Board videoconference hearing. However, the Veteran, through his representative, withdrew his hearing request in a September 2020 communication. There are no additional hearing requests in the record; therefore, the Board deems his request for a hearing withdrawn. See 38 C.F.R. � 20.704 (e) (2019).

In the same September 2020 communication, the Veteran s representative requested a 90 day extension to submit additional evidence. A 90 day extension was granted in November 2020 and additional evidence was later received.

New and material evidence has been received to substantiate the claim for service connection for Parkinson's disease to include right hand tremor and as due to herbicide exposure and the petition to reopen

Initially, the Board notes that by the December 2017 rating decision, the Regional Office (RO) denied reopening the Veteran s claim of entitlement to service connection for Parkinson s disease, to include right hand tremor and as due to herbicide exposure.  On appeal, however, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claims. This is important because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).

New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. � 3.156 (a).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118.

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The evidence presented since the May 2015 rating decision includes VA examinations, VA treatment records, and private treatment records.  This evidence is clearly  new  because it postdates the May 2015 decision and is also  material  because it reveals treatment for neurological symptoms, it relates to previously unestablished elements of service connection, and raises a reasonable possibility of substantiating the underlying issue.  Therefore, this evidence constitutes new and material evidence.  See Shade, 24 Vet. App. at 118.  Consequently, the Veteran s claim of entitlement to service connection for Parkinson s disease, to include right hand tremor and as due to herbicide exposure, is reopened.

REASONS FOR REMAND

The Veteran is seeking service connection for Parkinson s disease, to include a right hand tremor, contending that his condition was caused by his exposure to herbicide agents while he was serving the in the Republic of Vietnam.

An April 2015 VA examination determined that the Veteran does not have a current diagnosis of Parkinson s disease.  The examiner found that the Veteran had a mild tremor of his right hand, but the examiner noted that there were absolutely no other symptoms of Parkinson s disease.  The examiner opined that it was more likely than not that his right hand tremor was a benign essential tremor of no consequence, without any other findings to suggest Parkinson s disease.

Likewise, an August 2018 VA examination also found that the Veteran did not have a current diagnosis of Parkinson s disease.  Although the Veteran reported that he was being treated outside of VA for Parkinson s disease, these private treatment records were not of record or available for review at the time of the examination.  Therefore, the examiner concluded that he was unable to confirm a definite diagnosis of Parkinson s disease.

In support of his claim, the Veteran submitted private treatment records.  However, these records also did not confirm that the Veteran has a current diagnosis of Parkinson s disease.  Rather, in a private treatment record from February 2018, the examiner noted that the Veteran reported hand tremors, which the examiner characterized as parkinsonian; however, a diagnosis of Parkinson s disease was not rendered at that time.  Additional private treatment records from October 2019 indicate that the Veteran had been receiving treatment for tremors and that he was undergoing a neurological evaluation for cause, but once again, there was no diagnosis of Parkinson s disease indicated.

To afford the Veteran the broadest possible scope for his claim, the issue has been recharacterized accordingly to that of entitlement to service connection for a right hand tremor, to include as due to exposure to herbicides. Clemons v. Shinseki, 23 Vet. App. 1,6 (2009).

As discussed above, the Veteran was assessed as having an essential benign tremor by the April 2015 VA examiner and as having resting tremors in the September 2019 private treatment records.

A review of VA and private examination reports indicates that the Veteran s symptoms of a tremor in the right hand have not been fully explained by the examiners, aside from the determination that the Veteran does not have Parkinson s disease.  More specifically, no examiner has opined as to whether or not the Veteran s right hand tremor is diagnosable by itself, and, if so, whether or not it is attributable to the Veteran s active military service, to include as due to exposure to herbicides.  Equally, the Veteran s right hand tremor has been characterized as being a parkinsonian tremor, without any adequate discussion as to being distinct from Parkinson s disease.

Therefore, an addendum opinion is required to ascertain any diagnosis for a disability productive of the tremors in the Veteran s right hand and its connection to the Veteran s active military service.

If no definitive diagnosis is ascertainable, then an opinion on whether this symptom causes functional impairment of earning capacity must be provided. See, e.g., Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (recognizing pain as a disability if there is objective evidence of functional impairment of earning capacity).

The matters are REMANDED for the following action:

Obtain an addendum opinion from an appropriate clinician regarding the Veteran s right hand disability, manifested by symptoms of tremors right hand.  The claims file should be sent to and reviewed by the VA examiner.  If the examiner determines that an examination is necessary, but cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the Agency of Original Jurisdiction (AOJ) should consider whether other virtual options, to include telehealth interviews or examinations are possible.  If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran s claimed disabilities.

The examiner must opine whether the Veteran s right hand tremors warrants a separate diagnosis. Additionally, the examiner is requested to discuss the difference between a parkinsonian tremor, parkinsonism, and a diagnosis of Parkinson s disease.

If no separate diagnosis is warranted, the examiner must opine if the right hand tremors cause functional impairment of earning capacity.

If a separate diagnosis is made for right hand tremor or this symptom causes functional impairment to earning capacity, the examiner must opine if the diagnosis or condition of right hand tremor is at least as likely as not (50 percent or greater probability) related to service, to include his presumed herbicide exposure in service.

 In rendering this opinion, the examiner must consider the Veteran s statements regarding the onset of his condition and continuity of symptomatology and may not disregard those statements merely because there was no treatment.

The term  at least as likely as not  does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.

(Continued on the next page)

The rationale for all opinions expressed must be provided and the examiner must clearly articulate the reasons for his or her conclusions. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale should be provided for that conclusion.

Emily Tamlyn

Acting Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	K. Scanlan, Associate Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


series: legacy

judge_norm: K MILLIKAN

judge_role: Veterans Law Judge

disposition: remanded

condition: back

text:
��Citation Nr: 21006000

Decision Date: 02/03/21	Archive Date: 02/03/21

DOCKET NO. 17-02 974

DATE: February 3, 2021

REMANDED

Entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected disability is remanded.

REASONS FOR REMAND

The Veteran had active military service from September 1994 to March 1995. This appeal comes to the Board of Veterans  Appeals (Board) from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The case was previously before the Board in January 2019 and July 2020. The appeal has since been returned for further appellate review. This appeal has been advanced on the docket. 38 U.S.C. � 7107 (2012); 38C.F.R. �20.900 (c) (2019).

The issues of entitlement to service connection for a bilateral knee disorder were remanded in the July 2020 decision. In an October 2020 rating decision, the RO granted service connection for right knee patellofemoral pain syndrome, effective February 15, 2016, left knee patellofemoral pain syndrome, effective February 15, 2016, and left knee limitation of flexion, effective February 15, 2016. The RO noted that this was considered a total grant of the benefits on appeal. The Veteran has not expressed disagreement with this rating decision. The October 2020 rating decision represents a full grant of the benefits sought, and the issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).

1. Entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected disability, is remanded.

Remand is required for compliance with a prior Board remand. The Board is obligated by law to ensure that the RO complies with its directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance.  Stegall, 11 Vet. App. at 271.

The July 2020 Board remand directed the RO to secure an adequate VA examination and opinion. The Board directed the examiner to provide an opinion whether or not it is at least as likely as not the lumbar spine DDD is caused or aggravated by the service-connected cervical spine strain, left plantar fasciitis and right stress fracture syndrome, and/or the bilateral knee disorder.

The Veteran received an October 2020 VA examination. The examiner opined the Veteran s lumbar degenerative arthritis is less likely than not incurred in or caused by active military service. Also, the examiner opined the lumbar DDD is not likely caused or aggravated by the Veteran s service-connected cervical spine strain, left plantar fasciitis and right stress fracture syndrome. However, the examiner failed to address whether the Veteran s lumbar spine DDD is caused or aggravated by the now service-connected bilateral knee disorder. Lastly, on the November 2020 appeals satisfaction notice the Veteran requested a form to submit additional private treatment records for her back. Thus, there appears to be additional records that need to be associated with the claims file. Accordingly, remand is required.

The matters are REMANDED for the following action:

1. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Specifically, the records referred to in the November 2020 appeals satisfaction notice. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative (if any).

2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his low back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided, to include an explanation regarding any reliance on medical literature.

The examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the lumbar spine DDD is caused or aggravated by the service-connected cervical spine strain, left plantar fasciitis and right stress fracture syndrome, and/or the bilateral knee disorder.

The examiner is requested to address the following: 1) the VA examinations of record; 2) any relevant service treatment records, including the November 1994 STR documenting an individual sick slip showing that the Veteran complained of lower back pain and December 1994 STR documenting the Veteran complained of back pain; and 3) the February 2016 Veteran s statement  she hurt her back in service from prolonged marching in combat boots and carrying weight.

K. MILLIKAN

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	D. Braxton, Associate Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: MICHAEL MARTIN

condition: knee

text:
��Citation Nr: 21007000

Decision Date: 02/08/21	Archive Date: 02/08/21

DOCKET NO. 14-14 458

DATE: February 8, 2021

REMANDED

Entitlement to service for arthritis of the right knee is remanded.

Entitlement to service for arthritis of the left knee is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 23, 1985, through February 27, 1994, and from February 28, 1994, through December 4, 2006. He is eligible to receive benefits only for the period of service from September 1985 to February 1994.

This matter is before the Board of Veterans  Appeals (Board) on appeal of the July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record.

In January 2018, the Board remanded the issues on appeal for additional development. In November 2018, the Board issued a decision denying entitlement to service connection for bilateral knee arthritis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court vacated the November 2018 Board decision and remanded the issue for further consideration consistent with the Court s decision.

The Veteran was honorably discharged from his first period of active duty service and dishonorably discharged from his second period of active duty service.  Pursuant to a final, unappealed April 2010 VA administrative decision, the Veteran is only eligible for VA benefits for his period of honorable service beginning on September 23, 1985 and ending on February 27, 1994.

A statutory bar to benefits under 38 U.S.C.�5303(a) exists for his period of service beginning on February 28, 1994 and ending on December 4, 2006. The Board acknowledges that the Veteran s complete service treatment records are not available through no fault of his own; specifically, service treatment records dated 1991 through 1993 were determined to be unavailable. The Agency of Original Jurisdiction notified the Veteran of this in letters dated August and September 2010.

In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule where applicable. See O Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996).

1. Entitlement to service for arthritis of the right knee is remanded.

2. Entitlement to service for arthritis of the left knee is remanded.

In his July 2010 claim for compensation benefits, the Veteran claimed service connection for bilateral arthritis of the knees, which he indicated began in 1990. Specifically, the Veteran claims that during his first period of active duty service that he suffered trauma to his bilateral knees, which he believes caused his currently diagnosed bilateral knee arthritis.

In May 2017, the Veteran testified at a Board hearing that in approximately November 1989, while riding as tank commander during a practice maneuver, he was tossed from his seat and hit his bilateral knees on the back of the gunner seat. He asserted that this caused damage to his kneecaps, cartilage, and ligaments. He stated that he sought medical attention during service in 1995 and that he sought medical attention with his local VA Medical Center, where he received his braces. When questioned if he was given a diagnosis, the Veteran replied,  same thing that back in the day they gave me, arthritis in the knee.  When asked why he felt that service connection was warranted he replied,  because it all happened again in the Gulf War.

At a March 2018 VA examination, the examiner diagnosed the Veteran with degenerative arthritis of the bilateral knees. The Veteran reported injuring his knees in 1991 or 1992 while on active duty. He stated he was in a tank which went over a cliff and that he hit his knees on the sharp edge of the gunner s seat in front of him. He denied seeking a medical evaluation at that time. He stated that in 1997 he went to see a doctor because he could not run and was in pain all the time and that he was provided with knee braces and pain killers. He denied a history of any other injuries to his knees, denied history of occupational post-military overuse of his knees, and indicated that he separated from active duty in 2006 and had not worked since then.

The March 2018 VA examiner considered the medical and lay evidence of record and determined that it was less likely than not (less than 50 percent probability) that the Veteran s current bilateral knee disability was related to his active service, reasoning, in part, that the objective medical evidence did not demonstrate a persistent disability in service and that the reported bilateral knee injury during the Veteran s active service (when he hit his knees into the gunner seat when the tank he was in, went over a cliff) would not be expected to result in a chronic bilateral knee condition or residuals.

However, the examiner did not comment or address the Veteran s contention that he was diagnosed in 1989 and in 2005 with bilateral knee arthritis.

The Board cannot make a fully informed decision on the issue of entitlement to service connection for bilateral knee arthritis, without obtaining an addendum opinion addressing the lay testimony. Thus, a remand is necessary to obtain an addendum opinion to determine if there is a basis to grant service connection for the Veteran s bilateral knee arthritis.

The matter is REMANDED for the following action:

1. If possible, return the Veteran s complete record, to include a copy of this remand, and the claims folder to the examiner who reviewed the file and provided the March 2018 medical opinion hereinafter  examiner,  for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran s claim file to another appropriate medical professional who has the requisite experience to render the requested medical opinions. No examination of the Veteran is necessary unless the examiner deems otherwise.

2. Obtain an addendum opinion from the examiner to determine the nature and etiology of any bilateral knee disorder. The examiner must review the expanded record and determined if it is at least as likely as not (50 percent or greater probability) that any of the Veteran s diagnosed knee disorders, are etiologically related to any in-service injury, event, or disease?

3. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. Specifically, although the Board has not yet made a credibility determination, the examiner must note and address that the Veteran stated that:

(a.) He was given a bilateral knee arthritis diagnosis prior to 2005 ( back in the day ).

(b.) In 2005 the examiner reportedly gave him a bilateral knee arthritis diagnosis.

(c.) The March 2018 VA examiner stated that the reported bilateral knee injury during the Veteran s active service (when he hit his knees into the gunner seat when the tank he was in went over a cliff) would not be expected to result in a chronic bilateral knee condition or residuals, but did not explain, what would be expected.

(d.) The Veteran contends the March 2018 VA examiner provided no etiology of the origin of the Veteran s disability.

4. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran s theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.

In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 289 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained).

5. The AOJ must review this opinion to ensure it is adequate and complies with the Board s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional).

6. Then, the Veteran s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action.

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	M. Quist, Associate Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: E I VELEZ

text:
��Citation Nr: 21008000

Decision Date: 02/11/21	Archive Date: 02/11/21

DOCKET NO. 15-16 195

DATE: February 11, 2021

REMANDED

The issue of entitlement to service connection for carpal tunnel syndrome right hand is remanded.

The issue of entitlement to service connection for carpal tunnel syndrome left hand is remanded.

The issue of entitlement to service connection for primary vitiligo is remanded.

The issue of entitlement to an initial evaluation in excess of 10 percent disabling for service-connected degenerative arthritis left knee limitation of flexion is remanded.

The issue of entitlement to an initial evaluation in excess of 10 percent disabling for service-connected degenerative arthritis left knee limitation of extension is remanded.

REASONS FOR REMAND

The record shows periods of active service from January 2004 to September 2007, from April to September 2009, and in September 2012.

In November 2017, the Veteran testified under oath at a travel board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

In August 2018, the Board remanded these issues for additional development.  For the reasons outlined below, remand is again needed.

In the August 2018, the issue of entitlement to service connection for left hand surface lump was added to the issues on appeal.  The issue was added for the sole purpose of remanding for the issuance of a Statement of the Case (SOC).  See Manlicon v. West, 12 Vet. App. 238 (1999).  The Board notes that since the remand, the issues of entitlement to service connection for: (1) Dupuytren s contracture (claimed as left hand surface lump); (2) left hand metacarpal degenerative joint disease (index/longer finger) (claimed as left hand surface lump); and (3) left hand metacarpal degenerative joint disease (ringer/little finger) (claimed as left hand surface lump), were granted in an October 2020 rating decision.  Accordingly, the issue of entitlement to service connection for left hand surface lump is no longer before the Board.

In addition, following the August 2018 Board remand, in an October 2020 rating decision, service connection for degenerative arthritis left knee (limitation of extension) was granted with an evaluation of 10 percent disabling, effective August 21, 2020.  The issue has been added to the issues on appeal.

The Board acknowledges that in a November 2020 rating decision, the AOJ found a clear and unmistakable error in the continued evaluation of degenerative arthritis left knee limitation of flexion, at 10 percent disabling, and proposed to decrease the evaluation to a noncompensable evaluation.  The Board acknowledges the proposed reduction, but notes that it has not been implemented.  Accordingly, the issue on appeal remains a 10 percent evaluation.

1. Entitlement to service connection for carpal tunnel syndrome right hand.

2. Entitlement to service connection for carpal tunnel syndrome left hand.

The Board finds that additional development is needed prior to final adjudication of the remaining issues on appeal.  Regarding the Veteran s claimed carpal tunnel syndrome, the Board finds that a new VA opinion is needed.  The Board acknowledges the July 2020 VA opinion, but finds that the rationale provided in support of the opinion is inadequate.  The rationale provided states only:  There is no evidence of CTS in the STRs.   However, at the November 2017 travel board hearing, the Veteran indicated that he had treatment in service.  He noted going and getting braces for his hands.  He further indicated that the he believes his claimed disability was caused by the maintenance work he performed.  The new opinion must address the Veteran s lay statements regarding his claimed carpal tunnel syndrome.

3. Entitlement to service connection for primary vitiligo.

The Board finds that a new VA examination is also needed for the Veteran s claimed primary vitiligo.  Specifically, the Board seeks clarification as to whether the Veteran s claimed primary vitiligo pre-existed service.  The Board acknowledges that the examiner provided a positive nexus opinion addressing direct service connection.  However, the examiner also provided an opinion indicating that the Veteran s primary vitiligo  clearly and unmistakably existed prior to service,  but  was not aggravated beyond its natural progression by an in-service event, injury or illness.   Based on the rationale provided, it is unclear to the Board why the examiner determined that the claimed disability pre-existed service.  Accordingly, a new opinion is needed.

In addition, the Board notes that at the November 2017 travel board hearing, the Veteran indicated that when he first started his deployments, he went through a series of anthrax vaccinations and right after that, he noticed the pigmentation of his skin.  The Board asks that the new VA opinion address the Veteran s contentions regarding his vaccinations.

4. Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected degenerative arthritis left knee limitation of flexion.

5. Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected degenerative arthritis left knee limitation of extension.

Regarding the Veteran s service-connected degenerative arthritis left knee disability, the Board finds that a new VA examination is needed.  The Board acknowledges that the Veteran was examined in August 2020.  However, while the examination report notes that the Veteran experiences pain in his left knee in flexion and extension, the examiner did not note where the pain begins in terms of degrees of range of motion.  Similarly, pain was noted in the left knee in passive range of motion, in weight-bearing, and nonweight-bearing, but it was not described in degrees of range of motion.  The Board notes that in the August 2018 remand, the Board asked specifically that the examiner  provide range of motion testing (ROM) for the left knee for active motion, passive motion, weight-bearing, and nonweight-bearing.   (Emphasis in the original).  Accordingly, a new VA examination is needed.  See Correia v. McDonald, 28 Vet. App. 158 (2016).

The matters are REMANDED for the following action:

1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal.  All efforts should be documented in the claim file.  If any records could not be obtained, this should be noted in the claim file.

2. Upon completion of the above, schedule the Veteran for the following VA examinations:

(a) A VA examination to address the etiology of the Veteran s claimed right and left hand carpal tunnel syndrome.  For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran s active duty service.  The examiner is asked to specifically address the lay statements of record, including the Veteran s indication at the November 2017 travel board hearing that he had treatment in service.  He noted going and getting braces for his hands.  He further indicated that the he believes his claimed disability was caused by the maintenance work he performed.  The new opinion must address the Veteran s lay statements regarding his claimed carpal tunnel syndrome.

The VA examiner should be given access to the claim file.  The examiner should state that a review of the claim file was completed.  The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.  A detailed rationale is requested for all opinions provided.

(b) A VA examination to clarify whether the Veteran s claimed primary vitiligo pre-existed service.  The examiner is asked to address the following:

(i) Whether it is at least as likely as not that the disability clearly and unmistakably pre-existed service.

(ii) If there is clear and unmistakable evidence that the claimed disability pre-existed service, then the examiner should address whether there is clear and unmistakable evidence that the claimed disability was not permanently aggravated by service.  If not, the examiner should then address whether it is at least as likely as not that it was caused by the Veteran s active duty service.

The Board notes that a pre-existing injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  See 38 C.F.R. � 3.306 (a).

(iii) If it is determined that the claimed disability did not clearly and unmistakably pre-exist service, then the examiner should address whether it is at least as likely as not that it was caused by the Veteran s active duty service.

The examiner is asked to address the Veteran s contentions that when he first started his deployments, he went through a series of anthrax vaccinations and right after that, he noticed the pigmentation of his skin.  The Board asks that the new VA opinion address the Veteran s contentions regarding his vaccinations.

(c) A VA examination to evaluate the current level of severity of his left knee disability.  The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report.  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.

The examiner is asked specifically to provide range of motion testing (ROM) for both knees for active motion, passive motion, weight-bearing, and nonweight-bearing.  Full ROM testing must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal.  If the opposite joint is determined to be damaged, and no ROM on testing is conducted, this must be explained in the report.

In addition, for both knees the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing.  The examiner is asked to address the following questions:

(i)  Are any ROM movements painful on active, passive, and repetitive use testing?  If yes, identify whether active, passive, and repetitive use.

(ii)  If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM.

(iii)  If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute.

In addition, for both knees the examiner must discuss pain when used in weight-bearing or in nonweight-bearing.  The examiner is asked to address the following questions:

(i)  Is there pain when the joint is used in weight-bearing or nonweight-bearing?  If yes, identify whether weight-bearing or nonweight-bearing.

(ii)  If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM?  Please further describe these limitations.

(iii)  If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute.

For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted.

The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the knee disabilities and discuss the effect of the Veteran s knee disabilities on any occupational functioning and activities of daily living.  The examiner should state whether or not there is any neurologic disability, to include of the lower extremities, that is the result of the knee disabilities.

3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures.

E. I. VELEZ

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	K. Foster, Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: MEGAN R THOMAS

condition: ptsd

text:
��Citation Nr: 21009000

Decision Date: 02/18/21	Archive Date: 02/18/21

DOCKET NO. 15-18 569A

DATE: February 18, 2021

REMANDED

Entitlement to service connection for left ear hearing loss is remanded.

Entitlement to service connection for a low back disability is remanded.

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder (GAD), and major depressive disorder (MDD), is remanded.

Entitlement to service connection for sleep disorder is remanded.

REASONS FOR REMAND

The Veteran, who is the appellant in this case, served on active duty in the Army from January 1973 to May 1974.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In June 2018, the Board, in pertinent part, denied entitlement to service connection for bilateral hearing loss, a low back disability, a sleep disorder, and an acquired psychiatric disorder.  The Veteran appealed these denied claims.

In April 2019, the United States Court of Appeals for Veterans Claims (Court) granted an April 2019 Joint Motion for Partial Remand (JMPR) by counsel for the Veteran and VA, vacated the Board's June 2018 decision, in pertinent part, as to the issues of entitlement to service connection for bilateral hearing loss, a low back disability, a sleep disorder, and an acquired psychiatric disorder, and remanded these matters to the Board for development consistent with the JMPR.

In August 2019, the Board, in pertinent part, remanded these claims for additional development.  Unfortunately, another remand is necessary.

1. Entitlement to service connection for left ear hearing loss is remanded.

Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

In the January 2020 VA audiology examination report, the examiner opined that the Veteran s left ear hearing loss is less likely than not caused by or a result of an event in military service.  The VA examiner explained that comparison of the Veteran s enlistment and separation audiograms shows no significant threshold shifts to suggest noise injury.  Additionally, the examiner cited  the IOM report,  which the Board presumes to mean the Institute of Medicine (IOM) 2006 report, Noise and Military Service: Implications for Hearing Loss and Tinnitus, for the preposition that a prolonged delay in the onset of noise-induced hearing loss is unlikely.  For these reasons, based on the objective evidence (audiograms) available, the VA examiner concluded that there is no evidence on which to conclude that the Veteran s current hearing loss of the left ear was caused by or a result of his military service, including noise exposure.

Nonetheless, the Board finds this opinion inadequate because it was improperly based on a lack of medical evidence of hearing loss in service and without consideration of the Veteran s lay reports.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate because the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in his service treatment records to provide a negative opinion).  Indeed, VA regulations do not preclude service connection for a hearing loss which first met VA s definition of disability after service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

Furthermore, as noted above, the examiner referenced the IOM report finding that prolonged delay onset of noise-induced hearing loss is unlikely.  However, McCray v. Wilkie, 31 Vet. App. 243 (2019), found that the IOM study contains  qualifying or contradictory statements  that negatively impact the probative value and adequacy of any VA examinations that rely upon the study.  For this reason also, the Board finds that the medical opinion is inadequate and must be returned for an addendum opinion that asks the examiner to identify the medical text's qualifying or contradictory aspects and to explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran's case as to the question of whether delayed onset hearing loss is as likely as not etiologically related to conceded in-service noise exposure or acoustic trauma.

2. Entitlement to service connection for a low back disability.

In September 2020, pursuant to the Board s August 2019 remand directives, the Veteran was afforded a VA examination.  The VA examiner opined that the Veteran s low back disability is less likely than not related to service.  The VA examiner explained that a search of the pertinent evidence did not support the claim that the low back disability is as a result of the back pain that occurred during service.  In an October 2020 addendum opinion, the VA examiner stated that although the Veteran s report of symptoms was considered, there is no evidence that the low back pain reported during service was more than acute and transient in nature.  A dearth of low back complaints afterwards as evidenced on the pertinent records does not support the claim of low back disability, chronic, secondary to in-service injury.  While the VA examiner stated that the Veteran s lay statements regarding continuous low back pain since service were considered, no explanation is given for why these statements were discounted, as was required by the Board s August 2019 remand directives.  To the extent that the examiner in the October 2020 addendum opinion implied that the Veteran s reports of symptomatology since service were contradicted by the absence of contemporaneous medical evidence, the Board notes that this rationale is inadequate without further explanation.  See Maxson v. Gober, 230 F.3d 1330, 1333  (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service).  For these reasons, the September 2020 and October 2020 VA examiner s opinions are inadequate, and remand is necessary to obtain an adequate nexus opinion.  See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders).

3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, GAD, and MDD, is remanded.

4. Entitlement to service connection for sleep disorder is remanded.

A January 2020 VA examination was obtained in compliance with the Board s August 2019 remand directives.  The VA examiner was instructed to determine whether the Veteran had any psychiatric diagnoses other than PTSD and to offer an opinion as to whether it is at least as likely as not that each such condition manifested during service or is causally related to service, to include events therein.  The Board further instructed the examiner to  specifically reference the Veteran s service personnel records, which demonstrate that an early discharge was recommended for him because he was unable to adjust to service, and exhibited substandard personal appearance, duty performance, and attitude,  and to  discuss whether these documented deficiencies were evidence of in-service psychiatric symptomatology.   In a January 2020 VA examination report, the VA examiner diagnosed the Veteran with major depressive disorder (MDD) and polysubstance abuse, in complete remission, and opined that these conditions were less likely than not related to his service.  The VA examiner explained the Veteran did not described traumatic events during service and characterized the Veteran s reported difficult experiences during service as  not life-threatening events.   The VA examiner noted that the Veteran admits to have begun substance abuse during service, including hashish, cocaine, and other drugs, and that he continued substance abused until beginning VA treatment in 2003.  The VA examiner further opined that there is no nexus between the diagnosed MDD and service, and that the depressive disorder is  most probably secondary to his substance abuse and the consequences of his drug use (unemployment, marital problems, etc.) .  The VA examiner stated that polysubstance abuse is not a compensable condition, and no nexus opinion was given for this diagnosis.

This opinion and its rationale do not specifically reference the Veteran s service personnel records as instructed.  In addition, the January 2020 VA examiner did not provide the requested etiology opinion as ot the Veteran s diagnosed GAD, as directed by the Board in the August 2019 remand.  See Medical Report from private treating physician, Dr. C.M.Q., received by VA in May 2014 (noting diagnosis of GAD).  As such, remand is warranted to obtain an adequate opinion that complies with the Board s prior remand directives. See Stegall, supra.

In addition, the Board notes that the January 2020 VA examiner s opinion that the diagnosed MDD is  most probably secondary to his substance abuse and the consequences of his drug use  is conclusory; adequate rationale was not provided to support the opinion.  Therefore, the Board finds this nexus opinion to be inadequate, and remand is necessary to obtain an addendum opinion as to the etiology of the Veteran's currently diagnosed MDD.  T

To the extent that the VA examiner stated that polysubstance abuse is not a compensable condition, and no nexus opinion was given for this diagnosis, the Board notes that whether a particular diagnosis is a compensable condition is a legal conclusion, and not a medical matter.

As to the claim of entitlement to service connection for a sleep disorder, the Veteran s sleep disorder may be a symptom of, or otherwise related to, his acquired psychiatric disorder diagnoses.  Therefore, the Board finds that the issues are inextricably intertwined.  As such, remand is warranted for contemporaneous adjudication.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issues has been rendered).

The matters are REMANDED for the following action:

1. Refer the case to the VA examiner who conducted the January 2020 VA audiology examination (or a suitable substitute) for an addendum opinion as to the etiology of the Veteran's left ear hearing loss.  The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the VA examiner.  Another examination is not required; however, if the VA examiner indicates that he cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran.

After a complete review of the record, the examiner is asked to:

Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current left ear hearing loss disability is related to, or caused by, in-service acoustic trauma.

(a)	Regarding the examiner s partial reliance upon the IOM study, noted above, the examiner must (i) identify the medical text s qualifying or contradictory aspects (i.e.  There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one s lifetime, long after the cessation of that noise exposure ); and (ii) explain why s/he found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran s case as to the question of whether delayed-onset hearing loss is as likely as not etiologically related to in-service noise exposure.

A thorough explanation must be provided for all opinions rendered.

2. Obtain an addendum medical opinion from the September 2020 VA examiner (or a suitable substitute) as to the nature and etiology of the Veteran s low back disability.  The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the VA examiner.  Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board s questions without examination of the Veteran, another examination should be afforded to the Veteran.

After a complete review of the record, the examiner is asked to:

Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current low back disability, to include lumbar spondylosis, degenerative disc disease, and arthritis, is related to, or caused by, service, to include XXX.

The examiner is advised that the Veteran, as a former Medical Specialist, is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects or otherwise discounts the Veteran s reports of symptomatology since service, a reason for doing so must be provided.

A thorough explanation must be provided for all opinions rendered.

3. Obtain an addendum medical opinion from the January 2020 VA examiner (or a suitable substitute) as to the nature and etiology of the Veteran s diagnosed acquired psychiatric disorders.  The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the VA examiner.  Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board s questions without examination of the Veteran, another examination should be afforded to the Veteran.

After a complete review of the record, the examiner is asked to:

For EACH of the Veteran s diagnosed acquired psychiatric disorders other than PTSD, to include MDD and GAD, provide an opinion as to whether such diagnosed disorder at least as likely as not (50 percent probability or greater) manifested during service or is etiologically related to service.

**In formulating this opinion), the examiner must specifically reference the Veteran s service personnel records, which demonstrate that an early discharge was recommended for him because he was unable to adjust to service, and exhibited substandard personal appearance, duty performance, and attitude.  The examiner should discuss whether these documented deficiencies were evidence of in-service psychiatric symptomatology.

A complete rationale must be provided for the opinion(s) offered.

3. Then, readjudicate the issues on appeal.

Megan R. Thomas

Acting Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	G. N. Wilson, Associate Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: S BUSH

disposition: granted

disposition: denied

condition: radiculopathy

benefit: tdiu

text:
��Citation Nr: 21010000

Decision Date: 02/23/21	Archive Date: 02/23/21

DOCKET NO. 15-15 991

DATE: February 23, 2021

ORDER

Entitlement to an initial 20 percent rating, but no higher, for lumbar degenerative disc disease and degenerative joint disease (back disability) from October 18, 2012 to September 16, 2019 is granted.

Entitlement to an initial rating in excess of 20 percent for back disability from September 16, 2019 is denied.

Entitlement to a separate 20 percent rating, but no higher, for right lower extremity radiculopathy from May 23, 2016 is granted.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. From October 18, 2012 to September 16, 2019, when considering pain, flare-ups, and corresponding functional impairment, the Veteran s back disability has more nearly approximated forward flexion to 35 degrees.

2. The Veteran s back disability has not been manifested by forward flexion to 30 degrees or less, ankylosis, or incapacitating episodes of intervertebral disc syndrome (IVDS) at any point during the appeal period.

3. The Veteran s right lower extremity radiculopathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve since May 23, 2016.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial 20 percent rating, but no higher, for back disability are met from October 18, 2012 to September 16, 2019.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243.

2. The criteria for entitlement to an initial rating in excess of 20 percent for back disability from September 16, 2019 are not met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5243.

3. The criteria for entitlement to a separate 20 percent rating, but no higher, for right lower extremity radiculopathy are met from May 23, 2016.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a, DCs 8599-8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from May 1985 to August 1988.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Board remanded the claims for further development in June 2018.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38/ C.F.R., Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38/ U.S.C. �/ 1155.  The disability must be viewed in relation to its history.  38/ C.F.R. �/ 4.1.  If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38/ C.F.R. �/ 4.7.  Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38/ C.F.R. �/ 4.3.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as  staged  ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Id.

1. Entitlement to an initial 20 percent rating, but no higher, for back disability from October 18, 2012 to September 16, 2019 is granted.

2. Entitlement to an initial rating in excess of 20 percent for back disability from September 16, 2019 is denied.

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38/ C.F.R. ��/ 4.40, 4.45, 4.59; DeLuca v. Brown, 8/ Vet. App./ 202 (1995).  The United States Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25/ Vet. App./ 32 (2011); cf. Powell v. West, 13/ Vet. App./ 31, 34 (1999); Hicks v. Brown, 8/ Vet. App./ 417, 421 (1995); Schafrath v. Derwinski, 1/ Vet. App./ 589, 592 (1991).

Instead, the Mitchell Court explained that pursuant to 38/ C.F.R. ��/ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38/ C.F.R. ��/ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The Veteran s back disability is evaluated pursuant to DC 5243, which pertains to Intervertebral Disc Syndrome (IVDS) and may be rated either under the General Rating Formula for Diseases or Injuries of the Spine (General Rating Formula) or under the Formula for Rating IVDS (IVDS Formula), whichever results in a higher evaluation.

Pursuant to the General Rating Formula, as relevant here, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness that does not result in abnormal gait or abnormal spinal contour; or, vertebral body fracture is present with loss of 50 percent or more of the height.  A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating requires unfavorable ankylosis of the entire spine.  38 C.F.R. � 4.71a, General Rating Formula.

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code.  Id., Note (1).  Unfavorable ankylosis is defined by VA regulation as a condition in which the spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching.  Id., Note (5).  Fixation in the neutral position of zero degrees always represents favorable ankylosis.  Id.

By way of background, an October 2013 rating decision awarded service connection for a back disability and assigned a 10 percent rating, effective October 18, 2012.  A June 2020 rating decision increased the rating to 20 percent, effective September 16, 2019.  The appeal period before the Board is from the effective date of service connection, or October 18, 2012.

As a preliminary matter, the Board notes that although the Veteran presented for a VA examination in September 2013, the most recent September 2019 VA examination is the only examination that is compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).  Accordingly, only the September 2019 VA examination report will be utilized for evaluation of the Veteran s back disability based on range of motion, as it is the only adequate examination of record.  In this regard, the Board emphasizes that the prior non-compliant 2013 examination shows range of motion findings less favorable to the Veteran than those in the September 2019 VA examination report.  Thus, there is no prejudice to the Veteran in not considering the 2013 VA examination report to rate his disability based on limitation of motion and DeLuca factors.

At the September 2019 VA examination, the Veteran reported back pain and flare-ups with bending forward, carrying, lifting, pushing heaving objects, and prolonged standing and walking.  Physical examination revealed forward flexion to 45 degrees, with pain, but no additional loss of motion upon repetition.  Additionally, the examiner found objective evidence of localized tenderness and guarding that did not result in abnormal gait or abnormal spinal contour.  The examiner indicated that pain would additionally limit the Veteran s lumbar range of motion to 35 degrees of forward flexion with repetitive use over time and during a flare-up.  There was no evidence of muscle spasms, muscle atrophy, or ankylosis.  The Veteran s regular use of a back brace was noted.

Here, when considering the competent and credible reports of limited lumbar spine motion and pain during flare-ups, coupled with the examiner s assessment of additional decrease in mobility of forward flexion to 35 degrees due to painful flare-ups, a 20 percent rating is warranted throughout the appeal period pursuant to the General Rating Formula.

However, a rating in excess of 20 percent is not warranted at any point, as the evidence does not indicate forward flexion of the thoracolumbar spine to 30 degrees or less, even when considering additional functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and during a flare-up.  In this regard, even when considering DeLuca factors, the Veteran retained motion in the thoracolumbar spine and any additional limitation due to pain does not more nearly approximate a finding of forward flexion to 30 degrees or less or ankylosis.  Indeed, the September 2019 VA examination report showed flexion limited to no less than 35 degrees following repetitive motion and during a flare-up and no evidence of ankylosis was noted.  Accordingly, a rating higher than 20 percent rating is precluded.

Additionally, the Board has considered whether evaluating the Veteran s back disability under the IVDS Formula would be more beneficial to him.  However, there is no evidence of record of any incapacitating episodes as contemplated within the applicable rating criteria, let alone 4 weeks over a period of 12 months of such episodes, to allow for assignment of a 40 percent rating, and the Veteran does not contend otherwise.  See 38 C.F.R. � 4.71a, IVDS Formula, Note (1).  Moreover, the Veteran is currently in receipt of a separate rating for right lower extremity radiculopathy associated with his back disability, which would not be available if he was rated using the IVDS Formula.  Thus, an increased rating is not available under the IVDS Formula.

3. Entitlement to a separate 20 percent rating, but no higher, for right lower extremity radiculopathy from May 23, 2016 is granted.

Regarding separate neurological manifestations, the Veteran has been assigned a 10 percent rating for right lower extremity radiculopathy associated with his back disability, under DCs 8599-8520, effective July 5, 2019, the date of diagnosis.  See June 2020 rating decision.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned.  38 C.F.R. � 4.27.  The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology.  38 C.F.R. �� 4.20, 4.27.  DC 8520 evaluates paralysis of the sciatic nerve, and provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, a 60 percent rating for severe incomplete paralysis with marked muscle atrophy, and a maximum 80 percent rating for complete paralysis.  38 C.F.R. � 4.124a, DC 8520.

On May 23, 2016, an electrodiagnostic study showed evidence of right chronic S1 radiculopathy.  See May 24, 2016 VA treatment record.  To the extent left S1 radiculopathy was initially identified, the Board notes this finding was in error and a correction was issued, noting that the right lower extremity was affected.  Id. There is no indication of a prior diagnosis of radiculopathy.  In this regard, the Veteran denied radicular pain or other radicular symptoms at the 2013 VA examination.

A May 2019 VA treatment record notes decreased sensation along the right L5 and S1 dermatome, as well as decreased right S1 reflex.  A July 2019 VA treatment record confirmed a diagnosis of right chronic S1 radiculopathy and shows the Veteran s report of back pain radiating down his right leg, as well as his denial of any changes or new symptoms since his initial May 2016 diagnosis.

On VA examination in September 2019, muscle strength testing was normal with no evidence of atrophy.  Reflex and sensory testing was also normal except for decreased sensation in the right lower foot/toes.  The Veteran reported moderate symptoms of paresthesias and numbness in his right lower extremity.  The examiner found involvement of the right sciatic nerve and characterized the severity as mild.

Affording the Veteran the benefit of the doubt, these findings are demonstrative of no more than moderate incomplete paralysis of the right sciatic nerve, which is consistent with no higher than a 20 percent rating.  However, this separate 20 percent rating is warranted beginning May 23, 2016, the date right lower extremity radiculopathy was first diagnosed.  A rating in excess of 20 percent is not warranted at any point during the appeal period, nor is a separate rating prior to May 23, 2016 warranted, as contemporaneous examination reports and treatment records do not indicate signs or symptoms of moderately severe incomplete paralysis of the sciatic nerve in the right lower extremity, which the Board construes as somewhere between moderate (medium) and severe (extreme).  The Board s award of a 20 percent rating is based on the Veteran s own characterization of moderate symptomatology in 2019, which the Board is finding more probative than the September 2019 VA examiner s assessment of the severity of his condition (through application of the benefit of the doubt rule).  Notably, the Veteran denied any numbness, paresthesia, and other radicular symptoms during the September 2013 VA examination and there is no other competent evidence to support a separate rating during the earlier portion of the appeal period.  No other separately compensable neurological rating is warranted based on the record.

REASONS FOR REMAND

4. Entitlement to a TDIU is remanded.

Here, the Veteran currently does not meet the schedular criteria for a TDIU.  The Court has held that the initial extraschedular referral decision under 38 C.F.R. � 4.16(b) addresses whether there is  sufficient evidence to substantiate a reasonable possibility  that a veteran is unemployable by reason of his or her service-connected disabilities.  Ray v. Wilkie, 31 Vet. App. 58, 66-7 (2019).  While the Court has not defined the threshold of evidence sufficient to  substantiate a reasonable possibility  in this context, the Board observes that in other contexts the Court has found this to be a  low  threshold.  See, e.g., Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (noting that Congress intended a low threshold by requiring a claim to be reopened unless there is no reasonable possibility of substantiating a claim).

Here, the Veteran reports that he is not employed in a substantially gainful occupation due to his service-connected back disability.  See August 2018 and June 2019 VA Forms 21-8940.  Moreover, the September 2019 VA examiner found that the Veteran s service-connected back and radiculopathy disabilities did not preclude him from gainful  sedentary employment which does not require lifting, pushing, pulling or carrying more than 15-20 pounds of weight, doing overhead activities, prolonged standing and prolonged sitting.   The Board is confused as to how anyone could engage in a sedentary occupation that does not involve prolonged sitting.   Moreover, in a July 2016 statement, Dr. Lopez indicated that after a review of the Veteran s records and physical examination, he was too disabled due to his back and radiculopathy disability to return to  return to any kind of work that may provide a meaningful salary.   The Board finds that, on the present record, the low threshold for an initial extraschedular referral is met.  Ray, supra. Thus, referral to the Director of Compensation Service is necessary to determine if a TDIU on an extraschedular basis is warranted on remand.  See Bowling v. Principi, 15 Vet. App. 1 (2001).

The matter is REMANDED for the following action:

Refer to the Director of the Compensation Service the issue of whether the Veteran is entitled to TDIU on an extraschedular basis under 38 C.F.R. � 4.16(b) from October 18, 2012.

The Director s attention is invited to the July 2016 opinion of Dr. Lopez, estimating that the Veteran s back disability and right lower extremity radiculopathy renders him unable to return to any kind of work that may provide a meaningful salary, as well as the September 2019 VA examiner s opinion regarding functional impairment that seems to preclude any sedentary position requiring  prolonged sitting,  along with the Veteran s lay statements.

S. BUSH

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	S.S. Mahoney

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: ERIC S LEBOFF

condition: tinnitus

text: Entitlement to service connection for tinnitus remanded. [is remanded]

text:
��Citation Nr: 21011000

Decision Date: 02/26/21	Archive Date: 02/26/21

DOCKET NO. 14-35 317A

DATE: February 26, 2021

REMANDED

Entitlement to service connection for bilateral hearing loss is remanded.

Entitlement to service connection for tinnitus remanded.

REASONS FOR REMAND

The Veteran has active service from June 1974 to January 1976.

This case is before the Board of Veterans  Appeals (Board) from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran appeared before the undersigned Veterans  Law Judge at a November 2017 hearing.

After remanding these matters in September 2018, the Board issued a decision denying these issues in October 2019. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 2020 Joint Motion for Partial Remand (JMPR), the Court vacated that portion of the Board s decision that he Board did not ensure that all potentially relevant audiometric testing results were associated with the record, specifically including results from June 2015, November 2017, and July 2019 audiology consults (8/11/2020 CAVC Decision, pg. 4; 5/5/2016 CAPRI, pg. 276; 7/22/2019 CAPRI, pgs. 2 and 483).

Additionally, the Court cited a new examination for tinnitus should be sought to address any relationship between noise induced hearing loss and whether the Veteran's tinnitus is related to service and the Veteran's lay statements of record regarding the onset of minor tinnitus during service (8/11/2020 CAVC Decision, pg. 6). The matters are before the Board for review consistent with the JMPR.

The Veteran s enlistment physical reveals the Veteran s ears were clinically evaluated as normal. He was found qualified for enlistment and no hearing defect or diagnosis was noted on his enlistment examination (7/23/2010 Medical Treatment Record - Government Facility, pgs. 14-15). The Board notes that the Veteran's enlistment physical indicates right ear hearing acuity over 20 decibels at 500 Hz, and left ear hearing acuity over 20 decibels at 500, 1000, 2000, and 4000 Hz.

In accordance with Hensley v. Brown, 5 Vet. App. 155, 157 (1993), this shows some degree of pre-service hearing loss, although it was not considered a disqualifying defect, and the Veteran was qualified for enlistment.

The Veteran s November 1975 separation physical (7/23/2010 Medical Treatment Record - Government Facility, pg. 17) reveals pure tone thresholds, in decibels, were as follows:

  	 	 	HERTZ

 	500	1000	2000	3000	4000

RIGHT	      40	 30	35 	NA 	35

LEFT	30 	 30	30 	NA 	35

On remand, the examiner must provide an etiology opinion that addresses the lay testimony and the Veteran s separation audiometry scores in light of Hensley, noting all results exceed 20, suggestive of some degree of hearing impairment.

The matters are REMANDED for the following action:

1. The AOJ should ensure all available audiologic examinations and results of audiometric testing are of record, to include results of testing conducted in association with consults occurring on June 22, 2015; November 7, 2017; and July 17, 2019.

Associate results with the record. If no result can be found or are not available, the AOJ should ensure an description of efforts undertaken to obtain the results, and an explanation as to any unavailability is included in the record.

2. After the previous remand directive is complete, the AOJ should schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any bilateral hearing loss and/or tinnitus.

The examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed bilateral hearing loss and/or tinnitus is a result of service or any incident occurring during service.

The examiner is reminded to consider the results of the Veteran s entrance and separation audiometric examinations and the lay reports that his hearing loss as a result of being around the motor pool during service, in-service difficulty hearing while in crowds and with background noise, and his testimony that hearing protection was not worn during his active service. With regard to tinnitus, the Veteran s lay statement that he first noticed tinnitus while in the service should be addressed (11/21/2017 Hearing Transcript, pgs. 3-5).

A reason must be provided if the Veteran s lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran s contentions as to his bilateral hearing loss or the inservice onset of his tinnitus, the examiner should provide them.

If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event.

If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any inservice injury or event, the examiner should include that information in his remarks.

The examiner should reconcile any conflicting medical evidence of record to the extent possible.

The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and explain why this is so, (e.g., whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge).

Eric S. Leboff

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	P. A. Myers

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.