Citation Nr: 1800325 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-51 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 60 percent for degenerative joint disease (DJD) of the thoracic spine, with intravertebral disc syndrome (IVDS) of the thoracolumbar spine and peripheral neuropathy of the bilateral lower extremities, prior to August 27, 2015, and since October 1, 2015. 2. Entitlement to an initial evaluation in excess of 20 percent for osteopenia of the left shoulder. 3. Entitlement to an initial evaluation in excess of 20 percent for osteopenia of the right shoulder. 4. Entitlement to an initial evaluation in excess of 10 percent for osteopenia of the left hip with synovitis. 5. Entitlement to an initial evaluation in excess of 10 percent for osteopenia of the right hip with synovitis. 6. Entitlement to an initial evaluation in excess of 10 percent for osteopenia and tenosynovitis of the right ankle. 7. Entitlement to an initial evaluation in excess of 10 percent for osteopenia and tenosynovitis of the left ankle. 8. Entitlement to an initial evaluation in excess of 10 percent for right knee osteopenia and strain based on limited motion. 9. Entitlement to a separate initial evaluation in excess of 20 percent for right knee osteopenia strain based on instability. 10. Entitlement to an initial evaluation in excess of 10 percent for left knee osteopenia and strain based on limited motion. 11. Entitlement to a separate initial evaluation in excess of 20 percent for left knee osteopenia and strain based on instability. 12. Entitlement to special monthly compensation (SMC) based on permanent need for regular aid and attendance or housebound status since October 1, 2015. 13. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. L. Marcum, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1952 to May 1954, and on active duty in the Air Force from August 1955 to October 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2015 and September 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In its August 2015 rating decision, the RO granted entitlement to service connection for multiple disabilities. In doing so, the RO assigned the following initial disability ratings: separate 10 percent ratings for left and right shoulder osteopenia; separate 10 percent ratings for left and right knee osteopenia/strain; separate 10 percent ratings for left and right ankle osteopenia/tenosynovitis; and a noncompensable rating for bilateral hip osteopenia. An effective date of September 10, 2014 was assigned for all disability ratings. The RO also increased the disability rating of the Veteran's service-connected DJD of the thoracic spine, with IVDS of the thoracolumbar spine and peripheral neuropathy of the bilateral lower extremities, from 20 to 60 percent, effective September 10, 2014. In the same rating decision, the RO denied the Veteran's claim seeking entitlement to SMC based on aid and attendance/housebound. In January 2016, the Veteran timely filed a notice of disagreement contesting that decision. In its September 2016 rating decision, the RO increased the disability rating of the Veteran's service-connected DJD of the thoracic spine, with IVDS of the thoracolumbar spine and peripheral neuropathy of the bilateral lower extremities, from 60 percent to 100 percent, effective August 27, 2015, followed by a 60 percent rating beginning October 1, 2015. The RO also increased the previously assigned disability ratings for left and right shoulder osteopenia (from 10 to 20 percent) and for left and right hip osteopenia with synovitis (from 0 to 10 percent), effective September 10, 2014. In that same rating decision, the RO assigned separate 20 percent disability ratings for left and right knee osteopenia and strain based on instability. Lastly, the RO granted entitlement to SMC based on housebound criteria from August 27, 2015 to October 1, 2015 and deferred the newly raised issue of entitlement to TDIU due to service-connected disabilities. As the Veteran has not received a total grant of benefits sought on appeal for any of his service-connected disabilities, these issues remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Likewise, the grant of SMC was for the period August 27, 2015 to October 1, 2015. The issue of entitlement to SMC for permanent need of aid and attendance/housebound status since October 1, 2015 remains before the Board. Finally, the Board observes that the issue of entitlement to a TDIU due to service-connected disabilities was previously raised by the record but never adjudicated by the RO. A claim for TDIU is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, entitlement to TDIU is listed as an issue on appeal and is addressed in the Remand section below. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking increased disability ratings for his service-connected thoracic spine disorder, bilateral shoulder disorder, bilateral hip disorder, bilateral ankle disorder, and bilateral knee disorder based on limited motion and instability. He is also seeking entitlement to SMC based on permanent need for regular aid and attendance or housebound status since October 1, 2015, and a TDIU due to service-connected disabilities. Review of the Veteran's claims file and electronic records reveals that VA has a further duty to assist the Veteran in developing evidence pertinent to his claims. 38 U.S.C.A. § 5103A (2012); 38 C.F.R. § 3.159 (2017). A. Increased Rating Claims The Veteran was last afforded VA examinations of his service-connected disabilities in August 2015. In a July 2017 informal hearing presentation, the Veteran, through his representative, asserted that his service-connected disabilities "exude daily symptoms of functional loss due to painful motion, lack of endurance, incoordination, fatigue, weakness, flare-ups, and weight-bearing problems" [and that this] interferes with his daily activities. The Veteran also indicated that his general disability picture is "worse than currently rated." As there is an indication that the disabilities on appeal may have increased in severity, the Board finds it necessary to remand the claim for a contemporaneous examination to ensure that VA meets its duty to assist. 38 C.F.R. § 3.159 (c)(4)(i) (2017); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability had increased in severity); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination); Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if the record before the Board contains insufficient medical information for evaluation purposes). In addition to the above the Board also notes that the Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Also, as is relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id. The August 2015 VA examinations do not demonstrate range of motion testing for the Veteran's joints on both active and passive motion. In short, these VA examinations are inadequate for evaluation purposes. Thus, at present, the current medical evidence of record does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. As such, new VA examinations are necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected bilateral knee, shoulder, hip, and ankle disabilities. In order to comply with the Correia case, it is requested that the VA examiner test the range of motion for the appropriate joints, including both knees, where range of motion is affected by active motion, passive motion, weight-bearing, and nonweight-bearing situations. On remand, ongoing VA and private treatment records should also be obtained. B. TDIU and SMC Claims A claim for entitlement to TDIU due to service-connected disabilities is part of the existing increased rating claims when such a claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). When evidence of unemployability is submitted at the same time that a Veteran is appealing the rating assigned for other disabilities, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. In October 2016, the Veteran submitted an Application for Increased Compensation Based on Unemployability. Specifically, he asserted that his service-connected left and right shoulder disabilities, left and right hip disabilities, and degenerative spine disability prevented him from securing or following any substantially gainful occupation. Under these circumstances, the Board finds that the Veteran has raised the issue of entitlement to TDIU benefits. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that once a Veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider a total rating for compensation based upon individual unemployability). As the RO has not yet considered whether the Veteran is entitled to TDIU benefits, the issue must be remanded to the RO for adjudication. Rice, 22 Vet. App. at 453. While the appeal is in remand status, the Veteran must be afforded an appropriate VA examination to determine the functional effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. Finally, as the issue of entitlement to SMC is intertwined with the Veteran's claims for increased disability ratings and a TDIU based on service-connected disabilities, this issue must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include all VA and non-VA medical providers who have treated him for his service-connected thoracic spine, bilateral shoulder, bilateral hip, bilateral knee, and bilateral ankle disabilities, and any other service-connected disabilities giving rise to his claimed unemployability. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response the RO must obtain updated treatment records from the appropriate VA Medical Center (VAMC) where the Veteran receives treatment for his service-connected disabilities. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded examinations to determine the current severity of the following service-connected disabilities: (1) DJD of the thoracic spine, with intravertebral disc syndrome (IVDS) of the thoracolumbar spine and peripheral neuropathy of the bilateral lower extremities; (2) osteopenia of the left shoulder; (3) osteopenia of the right shoulder; (4) osteopenia of the left hip with synovitis; (5) osteopenia of the right hip with synovitis; (6) osteopenia and tenosynovitis of the right ankle; (7) osteopenia and tenosynovitis of the left ankle; (8) right knee osteopenia and strain based on limited motion and instability; and (9) left knee osteopenia and strain based on limited motion and instability. The electronic claims file must be made available to the examiner(s), and the examiner(s) must specify in the examination report that the Veteran's records have been reviewed. All indicated testing must be conducted. All pertinent symptomatology and findings must be reported in detail. The examiner(s) must conduct full range of motion studies where appropriate. If there is clinical evidence of pain on motion, the examiner(s) must indicate the specific degree of motion at which such pain begins. In particular, the examiner(s) should be directed to perform range of motion testing to determine the extent of limitation of motion due to pain on active motion and passive motion, and with weight-bearing and nonweight-bearing. If any examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Then, after reviewing the Veteran's complaints, testimony, and medical history, each examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Ensure that the examiner provides all information required for rating purposes. 3. The Veteran must be afforded an examination to address the functional effects of his service-connected disabilities on his ability to secure or follow a substantially gainful occupation consistent with her education and occupational experience. The electronic claims file must be made available to the examiner in conjunction with the examination. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on a review of the medical evidence of record, the clinical evaluation, and with consideration of the Veteran's statements, the examiner must address the functional impact of the Veteran's service-connected disabilities, either alone or acting in concert with each other, on his ability to secure or follow a substantially gainful occupation consistent with his education and occupational experience. When addressing the functional effects, the examiner must not consider the Veteran's nonservice-connected disabilities or age. 4. Undertake any other development determined to be warranted. 5. Finally, readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. The case should then be returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 (2012). _________________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), only a decision of the Board of Veterans' Appeals 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) (2017).