LOW BACK DISABILITY

S. BUSH · 2023 · Case ID: 23012443

MIXED

Summary

The veteran, who served in the U.S. Navy from February 2009 to March 2014, appeals the denial of increased ratings for his service-connected back and cervical spine disabilities, as well as the denial of service connection for a substance abuse disorder. The Board granted a 40 percent rating for the back disability, noting the July 2019 VA examination findings were probative and indicated limited flexion consistent with this rating. Increased ratings beyond 40 percent for the back were denied due to the absence of ankylosis or other criteria for a higher rating. Similarly, a 30 percent rating was granted for the cervical spine disability, based on the July 2019 VA examination showing limited flexion, with increased ratings denied due to the lack of ankylosis or other criteria for a higher rating. The Board also granted secondary service connection for a substance abuse disorder, finding that competent medical opinions from both VA and private examiners established a nexus to the veteran's service-connected orthopedic and psychiatric conditions. The Board resolved reasonable doubt in the veteran's favor for this claim. Several other claims, including increased ratings for the left shoulder and right hammertoe, separate ratings for neurologic impairments associated with various service-connected conditions, and GERD claims, were remanded for additional development and opinions to comply with VA regulations and case law.

Rationale

July 2019 VA examination compliant with Correia and Sharp; Limited flexion of 15 degrees during flare-ups supports 40% rating; No ankylosis present to warrant higher rating

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

19-20 561

Full Decision Text

Citation Nr: 23012443
Decision Date: 03/01/23 Archive Date: 03/01/23

DOCKET NO. 19-20 561
DATE: March 1, 2023

ORDER

Entitlement to a 40 percent rating for a back disability is granted.

Entitlement to a rating in excess of 40 percent for a back disability is denied.

Entitlement to a 30 percent rating for a cervical spine disability is granted.

Entitlement to a rating in excess of 30 percent for a cervical spine disability is denied.

Entitlement to secondary service connection for a substance abuse disorder is granted.

REMANDED

Entitlement to a rating in excess of 20 percent for left rotator cuff tendinosis, with partial tear of the supraspinatus tendon, with impingement syndrome is remanded.

Entitlement to a separate rating for neurologic impairments associated with service-connected back disability is remanded.

Entitlement to a separate rating for neurologic impairments associated with service-connected cervical spine disability is remanded.

Entitlement to a separate rating for neurologic impairments associated with service-connected right hammertoe fifth digit is remanded.

Entitlement to a separate rating for neurologic impairments associated with service-connected left shoulder disability is remanded.

Entitlement to a compensable rating prior to July 17, 2019, for gastroesophageal reflux disease (GERD) is remanded.

Entitlement to a rating in excess of 10 percent after July 17, 2019, for GERD is remanded.

Entitlement to a rating in excess of 10 percent for right foot hammer toe of the fifth digit with hypertrophy of the bone, right little toe, is remanded.

FINDINGS OF FACT

1. For the entire appeal period, the Veteran's service-connected back disability has been manifested by forward flexion limited to 30 degrees; but not ankylosis of the thoracolumbar or entire spine.

2. For the entire appeal period, the Veteran's service-connected neck disability has been manifested by forward flexion limited to 10 degrees; but not ankylosis.

3. The Veteran's substance abuse disorder is proximately due to his service-connected acquired psychiatric disorder and orthopedic disorders.

CONCLUSIONS OF LAW

1. For the entire appeal period, the criteria for a 40 percent rating, but no higher, for low back disability are met. 38 U.S.C. §§ 1155, 5107 ; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5237.

2. For the entire appeal period, the criteria for a 30 percent rating, but no higher, for neck disability are met. 38 U.S.C. §§ 1155, 5107 ; 38 C.F.R. §§ 4.7, 4.71a, DC 5237.

3. The criteria for secondary service connection for a substance abuse disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from February 2009 to March 2014.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Board remanded this matter in August 2021 and September 2022 for additional development. In December 2021, the Veteran's representative requested a copy of the engagement letter to the VA examiner or any exam inquiry, including the questions asked of the examiner, and copies of the December 2021 examiners' curriculum vitae. The December 2021 VA examiners' curriculum vitae was attached to the December 2022 Supplemental Statement of the Case. Additionally, VA examination reports were provided to the representative in January 2023. Furthermore, the Board notes, that the Veteran's representative has continuous, real-time access to the complete contents of the Veteran's claims via the Veterans Benefits Management System (VBMS). As the representative may access the file through VBMS at any time, there is no need to delay the adjudication of these claims in order to process any further requests of this nature.

The Board further acknowledges that the Veteran's attorney has made a general assertion that he preserves for appeal all errors the VA Regional Office may have made or the Board may hereafter make, including all legal errors, failure in fact-finding, failure to follow Title 38 of the C.F.R. failure to follow the M21-1 adjudication manual, and failure to discharge
3. Furthermore, the Board notes, that the Veteran's representative has continuous, real-time access to the complete contents of the Veteran's claims via the Veterans Benefits Management System (VBMS). As the representative may access the file through VBMS at any time, there is no need to delay the adjudication of these claims in order to process any further requests of this nature.

The Board further acknowledges that the Veteran's attorney has made a general assertion that he preserves for appeal all errors the VA Regional Office may have made or the Board may hereafter make, including all legal errors, failure in fact-finding, failure to follow Title 38 of the C.F.R. failure to follow the M21-1 adjudication manual, and failure to discharge the duty to assist, and any other due process errors. See October 2019 VA Form 9. Such vague, unspecific assertions of general due process errors do not amount to a specific procedural argument in this case and thus need not be addressed. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the claimant fails to raise them before the Board).

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the evidence demonstrates distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Other important factors include excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

The relevant rating criteria were amended in February 2021, during the pendency of this appeal. When rating criteria are amended during the pendency of an appeal, the Board will apply the pre-amendment criteria when rating the period prior to the effective date of amendment. After the effective date of amendment, the Board will apply the more favorable of the pre-amendment criteria and the amended criteria.

Here, there is no effective difference between the pre-amendment criteria and the amended criteria, as in this case the rating formula rates the Veteran's back and neck disabilities using the General Rating Formula for Diseases and Injuries of the Spine (Spine Formula).

The Veteran seeks increased ratings for his service-connected back and neck disabilities, which he asserts is more severe than is reflected by his current ratings.

The Veteran is currently in receipt of staged ratings for his back disability, as follows: 20 percent
the Board will apply the pre-amendment criteria when rating the period prior to the effective date of amendment. After the effective date of amendment, the Board will apply the more favorable of the pre-amendment criteria and the amended criteria.

The Veteran seeks increased ratings for his service-connected back and neck disabilities, which he asserts is more severe than is reflected by his current ratings.

The Veteran is currently in receipt of staged ratings for his back disability, as follows: 20 percent from April 26, 2016 and 40 percent from July 12, 2019. The Veteran is currently assigned a 10 percent rating from March 4, 2014 and a 30 percent rating from July 12, 2019.

By way of background, the current appeal period begins on April 26, 2016, the date VA received the Veteran's claims for increased ratings, plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

Pursuant to the Spine Formula, a 30 percent rating is warranted when forward flexion of the cervical spine is 15 degrees or less; or, when there is favorable ankylosis of the entire cervical spine.

A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine; or, when there is unfavorable ankylosis of the entire cervical spine.

A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating requires unfavorable ankylosis of the entire spine.

Diseases and injuries of the spine may also be rated under an alternative formula where intervertebral disc syndrome (IVDS) is present. However, the evidence shows that the Veteran does not have IVDS.

Note 1 to the Spine Formula provides that associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be rated separately under the appropriate Diagnostic Code.

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

1. Entitlement to a 40 percent rating for a back disability is granted.

2. Entitlement to a rating in excess of 40 percent for a back disability is denied.

The lay and medical evidence of record reflects that the Veteran's low back disability has been manifested by constant pain, stiffness, decreased range of motion, and use of a back brace. See December 2020 Correspondence. Indeed, the evidence shows the Veteran has demonstrated limited range of motion in his lumbar spine throughout the appeal period.

The Board has determined that the Veteran's December 2016 and December 2021 VA back examinations are not probative for rating purposes with regard to range of motion as they are not compliant with Correia and Sharp. The July 2019 VA examination is compliant with Correia and Sharp and is therefore probative. This is not prejudicial to the Veteran, as the December 2016 and 2021 VA examination reports show flexion findings less favorable than those used herein. Thus, the Board will employ the July 2019 VA examination report findings to rate the Veteran's back disability throughout the appeal period.

The July 2019 VA examiner estimated that, during flare-ups, the Veteran was only able to achieve 15 degrees of flexion, which supports a 40 percent rating from April 26, 2016. A rating in excess of 40 percent is not warranted. The Veteran does not assert, nor does the evidence show, the presence of ankylosis of the spine. Here, the Board acknowledges that a rating for the spine may be assigned on the basis of functional an
2016 and 2021 VA examination reports show flexion findings less favorable than those used herein. Thus, the Board will employ the July 2019 VA examination report findings to rate the Veteran's back disability throughout the appeal period.

The July 2019 VA examiner estimated that, during flare-ups, the Veteran was only able to achieve 15 degrees of flexion, which supports a 40 percent rating from April 26, 2016. A rating in excess of 40 percent is not warranted. The Veteran does not assert, nor does the evidence show, the presence of ankylosis of the spine. Here, the Board acknowledges that a rating for the spine may be assigned on the basis of functional ankylosis, which could potentially exceed a 40 percent disabling rating. See Chavis v. McDonough, 34 Vet. App. 1 (2021). However, the Veteran does not have ankylosis, functional or otherwise, as ankylosis is the lack of movement of a joint, and the Veteran has residual 15 degrees of forward flexion during flare-ups. As the rating schedule does not allow a rating in excess of 40 percent in the absence of ankylosis, a higher rating must be denied.

Similarly, the Board notes that the December 2016, July 2019, and December 2021 VA examiner specifically noted the Veteran's disability was not manifested by IVDS and the evidence does not otherwise show that his disability has required bed rest prescribed by a physician. Therefore, consideration (or even a higher rating) under the Formula for Rating IVDS on the Basis of Incapacitating Episodes is not warranted.

Given the foregoing, the Board finds the preponderance of the evidence supports the grant of a 40 percent rating, but no higher, for service-connected low back disability.

The Board notes that the General Rating Formula for Diseases and Injuries of the Spine directs VA to separately evaluate any objective neurological abnormalities associated with a spinal disability under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235-5243). In this case, the evidence of record suggests that the Veteran's back disability may be manifested by neurological impairment. However, additional development is needed in this regard before the Board can render a final decision on this matter. Because there is sufficient evidence of record to adjudicate the Veteran's claim for an increased rating for his back disability, the Board finds it is appropriate to bifurcate the increased rating claim from the issue of whether he is entitled to separate ratings for neurologic impairments associated with the service-connected low back disability. See e.g., Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions).

3. Entitlement to a 30 percent rating for a cervical spine disability is granted.

4. Entitlement to a rating in excess of 30 percent for a cervical spine disability is denied.

Throughout the appeal, the Veteran has reported chronic neck pain and flare-ups that he treats with acetaminophen and ibuprofen.

The July 2019 VA examiner estimated that, during flare-ups, the Veteran was only able to achieve 10 degrees of flexion that causes pain and fatigue, which supports a 30 percent rating from April 26, 2016. A rating in excess of 30 percent is not warranted. The Veteran does not assert, nor does the evidence show, the presence of ankylosis of the cervical spine, even when considering flare-ups and repetitive use, and the evidence does not reflect otherwise. Here, the Board acknowledges that a rating for the spine may be assigned on the basis of functional ankylosis, which could potentially exceed 30 percent disabling. See Chavis v. McDonough, 34 Vet. App. 1 (2021). However, the Veteran does not have ankylosis, functional or otherwise, as ankylosis is the lack of movement of a joint, and the Veteran has residual 10 degrees of
, 2016. A rating in excess of 30 percent is not warranted. The Veteran does not assert, nor does the evidence show, the presence of ankylosis of the cervical spine, even when considering flare-ups and repetitive use, and the evidence does not reflect otherwise. Here, the Board acknowledges that a rating for the spine may be assigned on the basis of functional ankylosis, which could potentially exceed 30 percent disabling. See Chavis v. McDonough, 34 Vet. App. 1 (2021). However, the Veteran does not have ankylosis, functional or otherwise, as ankylosis is the lack of movement of a joint, and the Veteran has residual 10 degrees of forward flexion during flare-ups. As the rating schedule does not allow a rating in excess of 30 percent in the absence of ankylosis, a higher rating must be denied.

Additionally, IVDS has not been identified nor is there any indication of prescribed bed rest to allow for a rating under the criteria for IVDS.

Finally, the evidence of record suggests that the Veteran's neck disability may be manifested by neurological impairment. However, additional development is needed in this regard before the Board can render a final decision on this matter. Because there is sufficient evidence of record to adjudicate the Veteran's claim for an increased rating for his neck disability, the Board finds it is appropriate to bifurcate the increased rating claim from the issue of whether he is entitled to separate ratings for neurologic impairments associated with the service-connected neck disability. See e.g., Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions).

Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11Vet. App.509, 512 (1998).

5. Service connection for substance abuse disorder is granted.

In this case, the Veteran seeks service connection for his substance abuse disorder on both a direct and secondary basis.

For all claims filed after October 31, 1990, (as is the case here) the Board emphasizes that direct service connection will not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. However, service connection is not precluded if the substance abuse is secondary to a service-connected disability.

In determining that secondary service connection for substance abuse is warranted, the Board acknowledges that the AOJ did not specifically adjudicate entitlement to this benefit. However, VA's decision on an issue within a claim implies that VA has determined that evidence of record does not support entitlement for any other issues that are reasonably within the scope of the issues addressed in that decision. 38 C.F.R. § 3.155(d)(2).

The Veteran, during the appeal period has had a diagnosis of cannabis use, opiod use, and polysubstance use disorders. At times, this has been in remission. Nonetheless, for purposes of the claim, the Veteran has a diagnosed substance abuse disorder and is service-connected for various orthopedic disabilities to include the right foot, back, and cervical spine as well as unspecified anxiety disorder. Thus, the first two elements of secondary service connection are established.

Regarding the last element, nexus, the only competent opinions of record are in favor of the claim. Specifically, the August 2019 VA examiner opined that there is a clinical relationship between the cannabis use disorder and unspecified anxiety, as the Veteran used cannabis as a maladaptive coping strategy for anxiety. In June 2020, following a review of the Veteran's claims file, Dr. M.S. in a private medical opinion determined that the Veteran suffers from chronic opiod dependency secondary to chronic pain and that his dependency exacerbated his anxiety and altered mental status. Dr. M.S. explained that the "relationship between opioid abuse and depression is bidirectional meaning that suffering from one increases the risk of the other." The October 2021 VA examiner opined that the Veteran's alcohol use and opioid use disorders were likely due to his service-connected orthopedic disorders, as they are used to help cope with his pain. The examiner explained that "research is highly correlated with substances being used to help with chronic pain and also being a symptom of his Bipolar disorder/coping with anxiety." In December 2021, Dr. R.W. opined that the Veteran's substance abuse disorder was caused by the Veteran's in-service right foot injury and that the Veteran's self-medication mutually aggravated his acquired psychiatric condition. These opinions are highly probative, as the examiners considered the Veteran's pertinent medical history and provided a cogent rationale based on medical research. To further bolster this opinion a July 2018 VA treatment record notes that the Veteran developed an addiction to opioids due to his low back disability. Accordingly, as all three elements have been met, secondary service connection for substance abuse is granted.

There is evidence supporting both causation and aggravation in the context of secondary service connection. The Board resolves reasonable doubt in the Veteran's favor in this regard and finds the award of service connection for substance abuse disorder should be implemented without consideration of a baseline level of disability.

Finally, the Board acknowledges that the Veteran has a current diagnosis of bipolar disorder with psychotic features. See July 2019 VA examination report. In a June 2020 private medical opinion, Dr. M.B. opined that the Veteran's in-service opioid use caused or exacerbated the Veteran's mental status and acquired psychiatric disorders. See also October 2021 VA medical opinion. However, a review of the medical evidence has not distinguished the symptoms associated with the Veteran's bipolar to his service-connected anxiety disorder and now his service-connected substance abuse disorder. See July 2019 VA examination report; December 2021 private disability benefits questionnaire (DBQ). As the Veteran will therefore be compensated for all of his psychiatric symptoms, the Board will not separately adjudicate a claim for service connection for any other acquired psychiatric disorder, to include bipolar disorder. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability).

REASONS FOR REMAND

6. Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded.

Review of the record reveals that the Veteran underwent VA shoulder examination in December 2021; however, this examination does not comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (the examiner should "estimate the functional loss that would occur during flares."). In this regard, the VA examination report relates that the Veteran denied flare-ups but also reflects that he essentially identified and described flare-up while discussing his current symptoms, to include left shoulder pain, that his left shoulder freezes at times, and that he uses pain medication. VA shoulder examinations in December 2016 and July 2019 noted functional impairment due to flare-ups. Thus, a Sharp compliant addendum opinion
is remanded.

7. Entitlement to a separate rating for neurologic impairments associated with service-connected back disability is remanded.

8. Entitlement to a separate rating for neurologic impairments associated with service-connected cervical spine disability is remanded.

9. Entitlement to a separate rating for neurologic impairments associated with service-connected right hammertoe fifth digit is remanded.

10. Entitlement to a separate rating for neurologic impairments associated with service-connected left shoulder disability is remanded.

In July 2018, the Veteran reported chronic numbness of his right pinky toe that spread down the lateral side of his foot. Physical examination revealed slight decreased sensation in the right pinky toe and along the lateral side of the foot. In August 2018, the Veteran received a cortisone injection to the fifth right toe due to tendon or nerve pain. A December 2018 x-ray of the cervical spine revealed possible mild right neural foraminal impingement at C6-C7. MRI of the cervical spine was recommended. It does not appear that the MRI was performed. See May 2019 VA treatment record (noting that the MRI appointment was not scheduled). In January 2021, the Veteran reported chronic low back pain that occasionally radiated to his hip and knee and cervical pain that radiated to his left shoulder, but not down the arm. See also December 2021 VA neck examination. To date a comprehensive VA peripheral nerves examination has not been conducted to confirm the nature and extent of any radiculopathy or other neurologic abnormality associated with his service-connected disabilities.

11. Entitlement to a compensable rating prior to July 17, 2019, for GERD is remanded.

12. Entitlement to a rating in excess of 10 percent after July 17, 2019, for GERD is remanded.

January 2021 VA treatment records shows the Veteran sought treatment, complaining of mild pain along the axillary left chest wall. He denied any specific trauma. In August 2021, the Board remanded the matter, in part, to obtain a medical opinion to determine whether the left shoulder axillary/substernal pain is attributed to his left shoulder disability or GERD. The December 2021 VA examiner failed to address the matter. Thus, an addendum opinion is required on remand.

13. An initial rating in excess of 10 percent for right foot hammer toe is remanded.

During VA podiatry treatment in February 2021, the Veteran reported right foot fifth digit pain, numbness, and swelling that gets worse as the day progresses. The Veteran described the pain as "writer's cramp of the toe." Further, the Veteran reported difficulty walking. Thus, the Board remanded the matter in August 2021 in order to assess the current nature and severity of his right hammertoe disability. However, the Board finds that the December 2021 VA examination report does not comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (the examiner should "estimate the functional loss that would occur during flares."). In this regard, the VA examination report relates that the Veteran denied flare-ups but also reflects that he essentially identified and described flare-up while discussing his current symptoms, to include use of a cane at times secondary to pain as well as pain management. However, no functional loss, including pain, was noted at the time of the examination. VA foot examinations in December 2016, December 2018, and July 2019 noted functional impairment due to flare-ups. Thus, an addendum opinion is needed on remand that includes a Sharp-complaint opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Any outstanding treatment records should also be secured on remand.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records.

2. With any necessary assistance from the Veteran, obtain all outstanding
symptoms, to include use of a cane at times secondary to pain as well as pain management. However, no functional loss, including pain, was noted at the time of the examination. VA foot examinations in December 2016, December 2018, and July 2019 noted functional impairment due to flare-ups. Thus, an addendum opinion is needed on remand that includes a Sharp-complaint opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Any outstanding treatment records should also be secured on remand.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records.

2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e).

3. Schedule the Veteran for a neurological VA examination to determine the nature and extent of any neurological manifestations due to his service-connected cervical spine, back, left shoulder, and right hammertoe disabilities. The VA examiner should review the entire electronic claims file, including this remand. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.

(a) If deemed necessary by the VA examiner, the Veteran should be scheduled for a MRI of the cervical spine. See December 2018 x-ray results.

(b) Distinguish between neurological manifestations of the Veteran's service-connected left shoulder, cervical spine, lumbar spine, and right hammertoe disabilities, including pain that is orthopedic in nature and any pain that is due to radiculopathy.

(c) Discuss whether there are some objective manifestations of a neurological problem, aside from pain. If so, the examiner must identify all nerve roots affected in each extremity and clarify the sensory, motor and/or trophic dysfunction for each involved nerve group.

(d) The VA examiner is requested to address the Veteran's complaints of radiating pain and numbness. Specifically the examiner should consider: (1) the finding of slight decreased sensation in the right pinky toe and along the lateral side of the foot in July 2018 VA treatment; (2) the August 2018 cortisone injection to the fifth right toe due to tendon or nerve pain; (3) the December 2018 x-ray of the cervical spine that revealed possible mild right neural foraminal impingement at C6-C7; (4) the Veteran's report of chronic low back pain that occasionally radiated to his hip and knee; and (5) the report of cervical pain that radiated to his left shoulder, but not down the arm in January 2021. See also December 2021 VA neck examination.

Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report.

(e) Distinguish between neurological symptoms related to his service-connected cervical spine and left shoulder, GERD, and left rib disabilities.

(f) Distinguish between neurological symptoms related to his service-connected back disability and those related to his service-connected right foot disability.

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

4. Obtain an addendum opinion from the December 2021 VA GERD examiner, if possible, to determine if the Veteran's left shoulder axillary/substernal pain is attributed to the Veteran's service-connected GERD disability. See January 2021 VA treatment record (the Veteran sought treatment, complaining of mild pain along the axillary left chest wall "in one spot, and only when he touches it." He denied any specific trauma.) The examiner must address the Veteran's service-connected left shoulder and left rib disabilities.

A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical
, to determine if the Veteran's left shoulder axillary/substernal pain is attributed to the Veteran's service-connected GERD disability. See January 2021 VA treatment record (the Veteran sought treatment, complaining of mild pain along the axillary left chest wall "in one spot, and only when he touches it." He denied any specific trauma.) The examiner must address the Veteran's service-connected left shoulder and left rib disabilities.

5. Obtain an addendum opinion addressing the severity of the Veteran's right hammertoe fifth digit and left shoulder disabilities during a flare-up. No additional examination is necessary, unless the examiner determines otherwise. The examiner is asked to address the following:

Considering the Veteran's reported history, to include his December 2016, December 2018, July 2019, and December 2021 VA examination reports and February 2021 VA treatment notations, please provide an opinion describing functional impairment of the Veteran's left shoulder and right hammertoe disabilities during flare-ups (without taking into account pain medication), accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, and report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. If an examination is needed for this determination, one should be scheduled.

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. Forde, 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.

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