Citation Nr: 1629942 Decision Date: 07/27/16 Archive Date: 08/04/16 DOCKET NO. 12-05 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for right shoulder strain. 2. Entitlement to an initial disability rating in excess of 20 percent for status post lumbar laminectomy and fusion, L5-S1 with scar and residual intervertebral disc syndrome of the sciatic nerve. 3. Entitlement to an initial disability rating in excess of zero percent for radiculopathy of the right lower extremity prior to November 23, 2011, and in excess of 20 percent thereafter. 4. Entitlement to an initial disability rating in excess of zero percent for radiculopathy of the left lower extremity prior to November 23, 2011, and in excess of 20 percent thereafter. 5. Entitlement to an initial disability rating in excess of 10 percent for benign essential tremors. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Andrew Hinton, Counsel INTRODUCTION The Veteran had active service from June 1975 to June 1979 and from January 1980 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision and an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the February 2010 rating decision, the RO granted service connection for status post lumbar laminectomy and fusion, L5-S1 with scar and residual intervertebral disc syndrome of the sciatic nerve, and assigned this disability an initial disability rating of 10 percent effective March 17, 2009. In the April 2010 rating decision, the RO granted service connection for benign essential tremors, and for right shoulder strain, and assigned each of these disabilities a 10 percent rating effective March 17, 2009. During the appeal, in a February 2012 rating decision, the RO increased the disability rating from 10 to 20 percent for the lumbar spine disability; and from 10 to 20 percent for the right shoulder strain; both effective from March 17, 2009. In that decision the RO also granted service connection for radiculopathy, left lower extremity, and for radiculopathy, right lower extremity, as secondary to (or as associated with) the service-connected status post lumbar laminectomy and fusion, L5-S1 with scar and residual intervertebral disc syndrome of the sciatic nerve. For each lower extremity radiculopathy disability, the RO granted a staged rating of zero percent effective from March 17, 2009 to November 22, 2011; and of 20 percent effective from November 23, 2011. Although the Veteran did not expressly initiate an appeal as to the ratings assigned for the bilateral radiculopathies of the lower extremities and the RO has not considered this explicitly in the evaluation of the Veteran's lumbar spine disability, the issue of the evaluation of the two service-connected radiculopathies of the lower extremities are part of the required evaluation of the lumbar spine disability on appeal. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (Evaluate any associated objective neurologic abnormalities...under an appropriate diagnostic code). Thus, the two issues are listed on the title page. The Veteran testified before the undersigned Veterans Law Judge at a Central Office hearing in March 2016. The record was held open 60 days to allow for the submission of additional evidence. The Veteran subsequently submitted additional evidence and waived initial RO review. See 38 C.F.R. § 20.1304(c) (2015). The Veteran appeared to raise the issue of entitlement to service connection for headaches to include as secondary to service-connected benign essential tremors at the March 2016 Board hearing. If he wishes to pursue a claim in that regard, he should submit a claim to the RO on the proper VA form. REMAND The Board finds it necessary to remand the claim for additional development. The Veteran was last examined by VA for compensation purposes regarding the evaluation of his service-connected benign essential tremors at a November 2011 VA examination. The report of that examination contains findings that the Veteran had constant head shaking. With respect to the right shoulder disability, the examiner opined that the Veteran will need to avoid any lifting over ten pounds, any work above shoulder level on the right, and all repetitive right arm movements. The report states that the Veteran did have recurrent muscle tension type headaches, primarily involving his cervical muscles due to his recurrent head tremors. The November 2011 VA examination report recorded that the thoracolumbar spine back range of motion was diminished, with range of motion of flexion limited to 60 degrees with pain beginning at 20 degrees. The right shoulder showed no evidence of ankylosis; and lateral abduction and flexion was limited to 90 degrees with pain beginning at 45 degrees. Range of motion of the right shoulder was not additionally limited by repetitive use, but the Veteran did have weakened movement and easy fatigability in the right shoulder. The November 2011 VA examination report recorded findings that there was no evidence of paralysis problems with speech or vision. Sensory examination was normal throughout. Straight leg raising tests were positive on the right and the left at 20 degrees. The Veteran demonstrated signs of an L5/S1 radiculopathy that most likely involved the sciatic nerve. The examiner found that the severity of the radiculopathy would be considered moderate. The Veteran denied having any actual incapacitating episodes of intervertebral disk syndrome, or any related bowel, bladder, or sexual dysfunction. The Veteran was last examined by VA for compensation purposes regarding the evaluation of his service-connected (1) right shoulder strain and (2) status post lumbar laminectomy and fusion, L5-S1 with scar and residual intervertebral disc syndrome of the sciatic nerve, at a November 2012 VA examination. Regarding the right shoulder disability, the VA examiner in November 2012 recorded that there was a diagnosis of right shoulder strain. The Veteran reported that he had continuous pain on use of the right shoulder. On examination of the right shoulder the examiner recorded right shoulder findings including the following. The initial range of motion included flexion and abduction both were to 180 degrees (normal) with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions with no additional loss in range of motion shown on flexion or abduction. The Veteran did not have localized tenderness or pain on palpation of joints or soft tissue or biceps tendon of the shoulder and the Veteran did not have guarding of the shoulder. Muscle strength testing showed 5/5 strength (normal) on abduction and forward flexion. The Veteran did not have ankylosis of the glenohumeral articulation (shoulder joint); and tests were negative for rotator cuff conditions, instability/dislocation/ labral pathology, AC joint conditions, and other impairment of the clavicle or scapula. The Veteran had not had any joint replacement or other surgical procedures; or other complications, conditions, signs or symptoms. The right shoulder disability did not result in functional impairment of the extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Diagnostic imaging studies did not document any arthritis. Regarding the lumbar spine disability, the VA examiner in November 2012 recorded that there was a diagnosis of status post lumbar laminectomy and fusion, L5-S1 with scar; and of residual intervertebral disc syndrome of the sciatic nerve. The Veteran reported that by 2007 he was unable to sit around or stand for a long period. On examination of the low back the examiner recorded thoracolumbar spine findings including the following. The range of motion included forward flexion to 85 degrees (normal is 90 degrees) with painful motion beginning at 80 degrees; and extension to 25 degrees (normal is 30 degrees), with painful motion beginning at 25 degrees. Right and left lateral flexion were to 25 degrees (normal is 30 degrees), with pain beginning at 25 degrees. Right lateral rotation was to 25 degrees (normal is 30), with painful motion beginning at 20 degrees. Left lateral rotation was to 25 degrees (normal is 30), with painful motion beginning at 25 degrees. Post-repetitive use test findings were essentially at the same endpoints for each plane of motion; and the examiner found that the Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. Functional loss included less movement than normal and pain on movement. The Veteran did not have localized tenderness or pain to palpation for joints or soft tissue of the back. He did not have any guarding or muscle spasm of the back. Muscle strength and reflex examinations were normal for lower extremities and there was no muscle atrophy. Sensory examination was normal. Straight leg raising testing was negative for radiculopathy and the Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. The Veteran did not have other neurologic abnormalities or findings related to the thoracolumbar spine condition. The Veteran had no intervertebral disc syndrome or incapacitating episodes. The Veteran had surgical scars but none were painful or unstable, or of a total area of greater than 39 square cm. Imaging studies showed no arthritis; and the Veteran did not have a vertebral fracture or other significant diagnostic test findings. During the November 2012 VA examination, the examiner recorded findings that there was no neurological condition. The examination report noted that diagnostic imaging did not document arthritis of the right shoulder or of the lumbar spine. An associated diagnostic imaging examination report concluded with impressions of (1) unremarkable appearance of the lumbar spine, status post L5-S1 fusion; and (2) no appreciable abnormality of either shoulder. Findings included that there was no prominent osteophyte appreciated in the lumbar spine, and that the glenohumeral and AC joints were unremarkable with no joint degeneration identified. During the Veteran's March 2016 Board hearing, the Veteran testified that he had bilateral sciatic nerve pain in both legs, left more than right, along with numbness, and a burning sensation from hypersensitivity of the skin. He had back pain and daily cramping of the legs. He testified that he had pain on motion of the right shoulder and a very limited range of motion and could only move his right arm to shoulder level and could lift only 20 pounds. He testified that his service-connected tremors resulted in shaking and caused him to have tension and migraine headaches. At the hearing, the Veteran's representative noted there were additional medical records outstanding from TriCare and the Portsmouth Naval Hospital. As noted in the introduction, the record was held open for 60 days for the Veteran to attempt to obtain any records outstanding. In May 2016, the Board received a letter from the Veteran's representative transmitting approximately 900 pages of treatment records from TriCare Prime Clinic of Chesapeake, Virginia, which were dated since 2012 through 2015, including some treatment records dated before the November 2012 VA examination but apparently not available to the examiner at the November 2012 VA examination. These treatment records record numerous findings pertaining to the service-connected disabilities on appeal and material to the claims for higher initial disability ratings. These treatment records document degenerative changes of the lumbar spine; shoulder impingement; osteoarthritis; peripheral neuropathy; arthritis; lumbar disc degeneration; lumbar spondylosis; lumbar radiculopathy; migraine headache. These treatment records include the report of a June 2012 MRI examination of the right shoulder showing findings of mild subacromial/subdeltoid bursal fluid, which may represent bursitis; and supraspinatus moderate tendinosis with bursal sided irregularity, which is consistent with very low grade partial tear. The foregoing including the Veteran's report of symptoms contained in the Veteran's submitted documents and transcript of the March 2016 hearing before the undersigned reflect that the Veteran's three disabilities on appeal may have worsened since the November 2011 and November 2012 VA examinations. Also, the TriCare medical records received recently include some treatment records generated prior to the November 2012 VA examination that indicate likely more severe symptoms than discerned by the November 2012 VA examiner who apparently did not have access to those treatment records. Given the foregoing, new examinations should be scheduled to evaluate the current nature, extent and severity of the service-connected right shoulder strain; status post lumbar laminectomy and fusion, L5-S1 with scar and residual intervertebral disc syndrome of the sciatic nerve; and benign essential tremors. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Any outstanding, pertinent VA or other medical records of treatment should be obtained prior to examination. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify all medical providers who have treated or evaluated him for his right shoulder strain; status post lumbar laminectomy and fusion, L5-S1 with scar and residual intervertebral disc syndrome of the sciatic nerve; and benign essential tremors; and approximate dates of treatment. Then obtain any outstanding VA or other relevant private treatment records indicated; and ensure that all existing VA treatment records are contained in the claims file. 2. Thereafter, afford the Veteran VA examinations by appropriate specialists to determine the nature, extent and severity of the service-connected right shoulder strain (orthopedic); status post lumbar laminectomy and fusion, L5-S1 with scar and residual intervertebral disc syndrome of the sciatic nerve (orthopedic and neurologic); and benign essential tremors (neurologic). The claims file must be made available to and be reviewed by the examiners and all necessary tests must be conducted. The examiners must examine the Veteran to determine the nature, extent and severity of the service-connected right shoulder strain; status post lumbar laminectomy and fusion, L5-S1 with scar and residual intervertebral disc syndrome of the sciatic nerve; and benign essential tremors. All indicated tests should be conducted and results reported in detail. In offering opinions, the examiners should acknowledge and discuss the Veteran's reports of associated symptoms. The examination should include a report of all pertinent findings to include a description of all symptomatology associated with the service-connected right shoulder strain; status post lumbar laminectomy and fusion, L5-S1 with scar and residual intervertebral disc syndrome of the sciatic nerve; and benign essential tremors. The examinations must include any indicated diagnostic examinations, including indicated imaging or neurological/nerve tests. With respect to the right shoulder: the examiner is requested to specifically note findings as to whether there is objective evidence of the following: (1) Ankylosis of the scapulohumeral articulation, and if so, at what angle in degrees of abduction; (2) Limitation of motion of the arm, and if so, at what angle in degrees from the side (abduction); (3) Other impairment of the humerus, to include any loss of head of the humerus (flail shoulder), nonunion (false flail joint), fibrous union, recurrent dislocation of the humerus at the scapulohumeral joint and if so at what frequency and level at which guarding occurs, or malunion that is of marked or moderate deformity; or (4) Impairment of the clavicle or scapula, and if so, whether this is dislocation, nonunion (with or without loose movement), or malunion, or any associated impairment in function of a contiguous joint (describe). With respect to the lumbar spine disability: the examiner shall identify all lumbar spine orthopedic and neurologic pathologies found to be present. The examination shall examine to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to or is part of the Veteran's status post lumbar laminectomy and fusion, L5-S1 with scar and residual intervertebral disc syndrome of the sciatic nerve, to include such factors related to the service-connected radiculopathy involving the lower extremities, and any other neurological abnormalities associated with the lumbar spine disability. The examiner is to identify all lumbar spine orthopedic and neurologic pathologies found to be present. The examination must include the results of all indicated orthopedic and neurologic tests and studies necessary. Orthopedic testing must include range of motion studies expressed in degrees and in relation to normal range of motion, and must describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner is to express any functional loss in terms of additional degrees of limited motion of the Veteran's lumbar spine/low back, i.e., the extent of the Veteran's pain-free motion. In addition, state whether the lumbar spine disability has been productive of any incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician. If so, describe the frequency and duration of those episodes. The examiner must discuss the nature and severity of the service-connected bilateral lower extremity radiculopathies. The examiner must make findings as to whether any sciatic or other associated nerve pathology constitutes complete paralysis or incomplete paralysis; and if incomplete paralysis is found, state a finding as to whether the neurologic impairment is mild, moderate, moderately severe, or severe with marked muscular atrophy. The examiner must also state whether the Veteran has any other objective neurologic abnormalities associated with his lumbar spine disability, such as any bowel or genitourinary neuropathology such as neurogenic bladder; and if so, describe the nature, extent, frequency and severity of symptoms of any such condition. With respect to the benign essential tremors: the neurologic examiner must describe the frequency, severity, and muscle groups involved and estimate whether the overall condition results in mild, moderate or severe impairment. The examiner must identify all symptomatology associated with or that is part of the benign essential tremors disability. A complete rationale for any opinions expressed, as well as a discussion of the medical principles involved, must be provided. 3. Finally, readjudicate the claims. If a benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).