Citation Nr: 1800822 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-01 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent from October 2, 2009, to July 13, 2011, in excess of 20 percent from July 14, 2011, to March 31, 2012, and in excess of 40 percent for service-connected degenerative disc disease (DDD) of the lumbar spine since April 1, 2012, excluding any periods of temporary total ratings (TTRs). 2. Entitlement to an effective date earlier than July 14, 2011, for the assignment of a 20 percent disability rating for service-connected DDD of the lumbar spine. 3. Entitlement to an initial disability rating in excess of 20 percent for sciatic nerve radiculopathy of the right lower extremity since October 2, 2009. 4. Entitlement to an initial disability rating in excess of 20 percent for sciatic nerve radiculopathy of the left lower extremity since October 2, 2009. 5. Entitlement to an effective date earlier than October 2, 2009, for the grant of service connection for sciatic nerve radiculopathy of the right lower extremity. 6. Entitlement to an effective date earlier than October 2, 2009, for the grant of service connection for sciatic nerve radiculopathy of the left lower extremity. 7. Entitlement to an initial disability rating in excess of 20 percent for femoral nerve radiculopathy of the right lower extremity since July 21, 2012. 8. Entitlement to an initial disability rating in excess of 20 percent for femoral nerve radiculopathy of the left lower extremity since July 21, 2012. 9. Entitlement to an effective date earlier than July 21, 2012, for the grant of service connection for femoral nerve radiculopathy of the bilateral lower extremities. 10. Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) from October 21, 2009, to February 9, 2017 . 11. Entitlement to an initial disability rating in excess of 10 percent for service-connected Crohn's disease with gastroesophageal reflux disease (GERD) since March 7, 2011. 12. Entitlement to a compensable disability rating for service-connected erectile dysfunction (ED) since October 2, 2009. 13. Entitlement to an extension of TTR beyond the December 11, 2011, to March 31, 2012, period based on convalescence pursuant to 38 C.F.R. § 4.30 (2017). 14. Entitlement to an extension of special monthly compensation (SMC) based upon housebound criteria beyond the December 11, 2011, to March 31, 2012, period. 15. Entitlement to an extension of TTR beyond the September 24, 2013, to December 31, 2013, period based on convalescence pursuant to 38 C.F.R. § 4.30. 16. Entitlement to an extension of SMC based upon housebound criteria beyond the September 24, 2013, to December 31, 2013, period. 17. Entitlement to service connection for a right shoulder disorder. 18. Entitlement to service connection for a left shoulder disorder. 19. Entitlement to service connection for a right knee disorder, to include rheumatoid arthritis. 20. Entitlement to service connection for a right foot disorder, to include arthritis, and to include as secondary to service-connected DDD of the lumbar spine. 21. Entitlement to service connection for a left foot disorder, to include arthritis, and to include as secondary to service-connected DDD of the lumbar spine. 22. Entitlement to service connection for a right hand disorder, to include arthritis, and to include as secondary to service-connected DDD of the lumbar spine. 23. Entitlement to service connection for a left hand disorder, to include arthritis, and to include as secondary to service-connected DDD of the lumbar spine. 24. Entitlement to service connection for a cervical spine disorder, to include DDD of the cervical spine, and to include as secondary to service-connected DDD of the lumbar spine. 25. Entitlement to an effective date earlier than October 2, 2009, for the establishment of a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. 26. Entitlement to an effective date earlier than October 2, 2009, for Dependents' Education Assistance (DEA) benefits. REPRESENTATION Veteran represented by: John S. Berry, Jr., Attorney ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1962 to December 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2010, February 2012, April 2012, May 2012, October 2012, October 2014, and February 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran's claims, apart from the increased rating and earlier effective date claims for femoral nerve radiculopathy of the bilateral lower extremities, were previously before the Board in March 2016, at which time the Board remanded them for additional procedural and evidentiary development. The Board notes that a May 2017 rating decision granted a maximum schedular disability rating of 100 percent for the Veteran's PTSD, effective February 2, 2017; thus, the Board has re-characterized the Veteran's increased rating claim for this disability as it is listed on the cover page of this decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board must remand the case for additional procedural and evidentiary development because the record indicates that the Veteran was in receipt of Social Security Administration (SSA) disability benefits. Specifically, the Veteran's attorney submitted a July 2005 SSA decision granting disability benefits since August 2002 based, in part, on the Veteran's back, rheumatoid arthritis, and osteoarthritis symptoms. However, there is no indication in the record that an attempt to obtain the SSA records has been made. As these records are relevant to the Veteran's increased rating, service connection, earlier effective date, SMC, DEA, and TTR claims, the Board must remand the case to associate these records with his claims file. The Board must also remand the claims of entitlement to service connection for a right knee disorder, right and left foot disorders, right and left hand disorders, and a cervical spine disorder for addendum VA medical opinions. In accordance with the Board's March 2016 remand instructions, the Veteran was afforded VA examinations for these disorders in February 2017, during which the examiner determined that these disorders were less likely than not caused by the Veteran's military service because there was no evidence of any right knee, feet, hands, or cervical spine problems in service. The examiner determined that these disorders were caused by the Veteran's rheumatoid arthritis, which the examiner noted was not diagnosed until the early 2000s. However, the Board determines that these medical opinions are inadequate to adjudicate the service connection claims for a right knee disorder, right and left foot disorders, right and left hand disorders, and a cervical spine disorder. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Specifically, the examiner did not discuss service treatment records, including a June 1972 report of medical history, in which the Veteran complained of painful neck symptoms, swollen or painful joints, trick or locked knee, painful or trick shoulder or elbow, and arthritis, rheumatism, or bursitis. Furthermore, although the examiner determined that the Veteran's arthritis was not diagnosed until the early 2000s, the record shows that arthritis was diagnosed at least as early as 1990 in the hands and cervical spine. Thus, addendum medical opinions are necessary to adjudicate the Veteran's claims. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran and his attorney to submit the Veteran's complete Social Security Administration (SSA) records, including any administrative decisions on his application for SSA benefits and all underlying medical records. If the Veteran and/or his attorney indicate that they are not in possession of any such records, contact SSA and request that SSA provide VA with the Veteran's complete SSA records, including any administrative decisions on his application for SSA disability benefits and all underlying medical records. A copy of any records obtained from SSA, to include a negative reply, should be included in the claims file. 2. Thereafter, return the claims file to the February 2017 VA examiner who conducted examinations of the Veteran's right knee, feet, hands, and cervical spine disorders and request that she re-review the claims file and respond to the below inquiries regarding the Veteran's service connection claims. If that examiner deems it necessary or is otherwise unavailable, schedule the Veteran for an appropriate VA examination to assist in determining the nature and cause of his right knee, bilateral foot, bilateral hands, and cervical spine disorders. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. Based upon a review of the relevant evidence, history provided by the Veteran, the February 2017 VA examination reports, and sound medical principles, the VA examiner should provide opinions as to: a. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current right knee disorder, right and left hand disorders, right and left foot disorders, and cervical spine disorder, to include arthritis, are related to the Veteran's active duty service, which was from March 1962 to December 1973. b. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current arthritis of the right knee, hands, feet, and cervical spine manifested in service from March 1962 to December 1973, or within one year of separation from service in December 1973. In providing opinions, the examiner should discuss the significance of service treatment records, including a June 1972 report of medical history showing complaints of cramps in the legs, painful or trick shoulder or elbow, trick or locked knee, and arthritis, rheumatism, or bursitis. Additionally, the examiner should discuss the significance of March 2011 photographs of the Veteran's hands and feet while in service and currently, and his contentions that his arthritis symptoms onset while in service from March 1962 to December 1973. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 3. After completing Step 1 and Step 2, and any other development deemed necessary, readjudicate the claims of entitlement to: increased ratings for DDD of the lumbar spine, sciatic nerve radiculopathy of the right and left lower extremities, femoral nerve radiculopathy of the right and lower extremities, PTSD, Crohn's disease with GERD, and ED; an earlier effective date for an increased rating for DDD of the lumbar spine; earlier effective dates for the grant of service connection for sciatic nerve radiculopathy of the right and left lower extremity and femoral nerve radiculopathy of the bilateral lower extremities; an earlier effective date for the establishment of a TDIU; an earlier effective date for DEA benefits; an extension of TTR beyond December 11, 2011, to March 31, 2012, and beyond September 24, 2013, to December 31, 2013; an extension of SMC based on housebound criteria beyond December 11, 2011, to March 31, 2012, and beyond September 24, 2013, to December 31, 2013; and, service connection for right and left shoulder disorders, a right knee disorder, right and left foot disorders, right and left hand disorders, and a cervical spine disorder in light of the new evidence. If the benefits sought on appeal remain denied, a supplemental statement of the case (SSOC) should be furnished to the Veteran and his attorney, and they should be afforded a reasonable opportunity to respond. The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals 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. §§ 5109B, 7112 (2012). _________________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).