Citation Nr: 1800768 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 07-02 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for a respiratory disorder, variously characterized as asthma and left lower lung fibrosis with upper field thickening (30 percent prior to August 2, 2010) and as sleep apnea with asthma and left lower lung fibrosis with upper field thickening (50 percent from August 2, 2010 to February 5, 2017, and 60 percent from February 6, 2017). 2. Entitlement to an initial rating in excess of 10 percent for bilateral sesamoiditis, status post bilateral sesamoidectomies. 3. Entitlement to an initial rating in excess of 20 percent for right subacromial impingement, acromioclavicular joint arthrosis, and status post rotator cuff repair. 4. Entitlement to an initial compensable rating for chronic left trapezius muscle spasm prior to August 23, 2010 and a rating greater than 20 percent from August 23, 2010. 5. Entitlement to an initial compensable rating for dishydrotic eczema. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to June 1985, June 1988 to December 1988, and February 1989 to July 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating actions of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA). In the July 2005 decision, the RO, in pertinent part, granted service connection for asthma (10 percent); bilateral sesamoiditis, status post sesamoidectomies (10 percent); right subacromial impingement, acromioclavicular joint arthrosis, and status post rotator cuff repair (10 percent); chronic left trapezius muscle spasm (zero percent); left lower lung fibrosis with upper lung field thickening (zero percent); and dishydrotic eczema (zero percent). In July 2009, the Veteran testified before the undersigned at a hearing held at the RO. A transcript of that proceeding is of record. In May 2010 the Board remanded the issues for further development. In a June 2012 rating decision, the RO evaluated together the issues of asthma and left lower lung fibrosis with upper lung field thickening as they are coexisting respiratory conditions that are not to be rated separately pursuant to 38 C.F.R. § 4.96. The RO increased the rating to 30 percent for asthma and left lower lung fibrosis with upper lung field thickening effective August 1, 2005, the day after the Veteran was separated from service. In April 2017, the Appeals Management Center (AMC) granted a combined 50 percent rating from August 2, 2010 to February 5, 2017 and a combined 60 percent rating from February 6, 2017 for sleep apnea with asthma and left lower lung fibrosis with upper lung field thickening associated with chronic rhinitis with left septal deviation status post septoplasty. In the June 2012 rating decision the RO increased the rating to 20 percent effective August 23, 2010 for right subacromial impingement, acromioclavicular joint arthrosis, and status post rotator cuff repair and for chronic left trapezius muscle spasm. In a rating decision in April 2017 the AMC assigned an initial rating of 20 percent effective August 1, 2005 for the right subacromial impingement, acromioclavicular joint arthrosis, and status post rotator cuff repair. Thus, the issues are characterized as indicated on the title page. As for the issue of an initial higher rating for dishydrotic eczema, it was before the Board in December 2016 and was stayed pending a determination in the United States Court of Appeals for the Federal Circuit (Federal Circuit) in the case of Johnson v. McDonald, 27 Vet. App. 497 (2017). The Federal Circuit reversed and remanded the decision of the Court of Appeals for Veteran Claims (Court). See Johnson v. McDonald, 27 Vet. App. 497 (2016), rev'd sub. nom. Johnson v. Shulkin, 862 F.3d 1351 (2017). Thus, the previous stay is now lifted. The issues on appeal were most recently remanded in December 2016. As the requested development has not been completed, further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must be remanded for further development. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of two previous remands. However, for reasons explained further below another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. First, in the December 2016 remand, the Board instructed that, if a decision on any of the issues is in any way adverse to the Veteran, a Supplemental Statement of the Case (SSOC) must be issued and an appropriate time should be allowed for a response. As noted by the Veteran's representative in November 2017, an SSOC has not been in issued, and there is a lack of compliance with the Board's remand directives. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall 11 Vet. App. 268. Second, in the December 2016 remand, the Board requested that, in order to comply with the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016), the evaluation of the Veteran's orthopedic disabilities include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Such findings were not completely provided on the February 2017 VA examination for the right shoulder and the feet (bilateral sesamoiditis). Compliance with the Board's remand instructions is neither optional nor discretionary. See Stegall. As a new VA examination is necessary to evaluate the Veteran's right shoulder, the current level of severity of his left shoulder disability also should be evaluated. While the Veteran was afforded a VA peripheral nerve examination in February 2017 regarding his feet, on remand he must also be afforded a VA examination that fully addresses the orthopedic manifestations associated with his bilateral sesamoiditis to include the concerns addressed in Correia. Third, a copy of the February 2017 VA examination associated with the Legacy Content Manager referenced a January 9, 2017 VA podiatry note. The most recent VA treatment records currently in the file are dated December 7, 2016. On remand, the Veteran's assistance should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to the file. Also, the Veteran was last afforded a VA examination for the service-connected dishydrotic eczema in August 2010. Subsequent VA treatment records show that he complained of painful eczema on his left foot. See, e.g., July 2011 VA treatment record. Thus, the Board finds that a current examination is necessary. Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (finding that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to support adequately the decision in an increased rating appeal). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file, to include VA treatment records from December 7, 2016 to the present. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2, Afterwards, schedule the Veteran for VA orthopedic examinations to determine the severity of his service-connected right shoulder disability, left shoulder disability, and bilateral sesamoiditis, status post bilateral sesamoidectomies. The entire claims file, to include a copy of this REMAND, must be made available to the examiner designated to examine the Veteran. All indicated tests and studies should be performed. The examiner is asked to do the following: a.) Utilize the appropriate Disability Benefits Questionnaire in evaluating the service-connected bilateral shoulder disability and bilateral sesamoiditis. The examiner should set forth all current complaints and findings pertaining to the shoulders and feet. Range-of-motion and repetitive motion studies should be performed and should be expressed in degrees. The examiner must determine any range of motion movements that are painful on active use, passive use, repetitive use, in weight-bearing, and non-weight-bearing. The examiner must discuss any functional loss due to pain or painful motion (supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion) as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. Any additional functional loss should be expressed in terms of additional limitation of motion. The examiner should also address whether there is additional loss of motion associated with flare-ups or on repetitive use. b.) To the extent possible, the examiner is asked to provide retrospective commentary on the Veteran's disability levels of his service-connected bilateral shoulder disability and bilateral sesamoiditis and to comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated for the entire appeal period from August 2005 to the present. c.) The examiner should describe any associated metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones, and identify the severity of any such associated disability. The examiner should state whether any of these conditions are due to or aggravated by his service-connected bilateral sesamoiditis. d.) The examiner should state whether the overall level of disability associated with the Veteran's service-connected bilateral sesamoiditis could be described as severe, moderately severe, or moderate. e.) The examiner should address the impact of the service-connected bilateral shoulder disability and bilateral sesamoiditis on the Veteran's occupational functioning (regardless of his age). A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion he/she should explain why. 3. Schedule the Veteran for a VA skin examination to determine the current severity of his service-connected dishydrotic eczema. If it is not possible to schedule the Veteran for a VA examination during a period of flare-up, the examiner should attempt to document the Veteran's symptoms based on the Veteran's description of symptoms during a period of flare-up. The claims file must be made available to the examiner. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner should utilize the appropriate Disability Benefits Questionnaire in evaluating the service-connected dishydrotic eczema. He or she should state the percentage of the body that is affected by the disorder, the percentage of exposed areas of the body that are affected, and the duration of any systemic therapy, to include corticosteroids or other immunosuppressive drugs, during the last 12 months. The examiner must state the location of all areas of dishydrotic eczema. The examiner is asked to indicate whether any topical steroid used to treat the Veteran's dishydrotic eczema is considered either systemic or topical therapy. 4. Readjudicate the issues on appeal-as are listed on the title page of this Remand. If the decision on any of these issues is in any way adverse to the Veteran, the AOJ must issue an SSOC and allow the appropriate time for response. Then, return the case to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, and his failure to report for a scheduled VA examination, may impact the determination made. 38 C.F.R. § 3.655 (2017). He is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) They must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). 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).