Citation Nr: 1801529 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-05 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for cervical spine C3-4 through C6-7 degenerative joint disease. 2. Entitlement to a rating in excess of 30 percent for sinusitis with headaches. 3. Entitlement to an increased rating for left shoulder arthritis, rated 10 percent disabling prior to November 4, 2011 and 20 percent disabling since that date. 4. Entitlement to a rating in excess of 10 percent for right shoulder arthritis. 5. Entitlement to a rating in excess of 10 percent for left elbow degenerative joint disease. 6. Entitlement to a rating in excess of 10 percent for right elbow degenerative joint disease. 7. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease. 8. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease. 9. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative joint disease with mild scoliosis. 10. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1993. He received the Army Commendation Medal. These matters come before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Roanoke, Virginia. In a January 2012 decision, a Decision Review Officer (DRO) granted an increased (20 percent) rating for left shoulder arthritis, from November 4, 2011. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2017), pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate where the examiner declined to provide an estimate of the degree of additional loss of motion due to flare-ups because such would require resort to speculation). Moreover, the Court has held that the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the Veteran was afforded a VA examination in February 2010 to determine the severity of his service-connected cervical spine, shoulder, elbow, knee, and lumbar spine disabilities. The ranges of active motion of the cervical spine, shoulders, elbows, knees, and thoracolumbar spine were reported and it was noted whether there was objective evidence of pain with the active ranges of motion. In particular, there was objective evidence of pain with active motion of the knees, cervical spine, and thoracolumbar spine. It is unclear from the February 2010 examination report the points at which pain began during the ranges of knee and spinal motion or the extent to which the Veteran experienced any additional functional loss due to pain, weakened movement, excess fatigability, or incoordination. Also, the cervical spine, shoulders, elbows, knees, and thoracolumbar spine were not tested for pain on passive motion and the cervical spine, knees, and thoracolumbar spine were not tested for pain in both weight bearing and non weight bearing. Additionally, the evidence reflects that all of the Veteran's claimed disabilities may have worsened since his most recent examinations. For instance, his representative reported in a December 2017 Informal Hearing Presentation that his disabilities had "continued to worsen since his last VA exams and thus are no longer accurately reflected from those previous evaluations." In light of the deficiencies in the February 2010 examination report, the evidence of potential worsening of the Veteran's claimed disabilities since the most recent examinations, and the fact that the increased rating issues on appeal are otherwise being remanded for issuance of a supplemental statement of the case (SSOC), the Board finds that a remand is necessary to afford the Veteran new VA examinations to assess the severity of the service-connected cervical spine, sinusitis, shoulder, elbow, knee, and thoracolumbar spine disabilities. With respect to the claim for a TDIU, the evidence reflects that the Veteran was gainfully employed for the majority of the claim period and retired in approximately July 2015. Upon remand, the AOJ should request that the Veteran submit a formal application for a TDIU (VA Form 21-8940) because no such application has ever been submitted and more detailed information as to the Veteran's education, employment, and earnings history would be helpful in adjudicating his TDIU claim. Also, additional information will be obtained pertaining to the functional impacts of the Veteran's service-connected cervical spine, sinusitis, shoulder, elbow, knee, and thoracolumbar spine disabilities during the requested VA examinations and the claim for a TDIU is inextricably intertwined with the other increased rating claims on appeal. Hence, the Board will defer adjudication of the TDIU issue at this time. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to assist a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c), (d) (2017). The VCAA's duty to assist includes a duty to assist a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159 (c)(4). Evidence associated with the Veteran's claims file, including an April 2015 VA psychiatry outpatient consultation note and a September 2015 VA pain clinic psychology progress note, suggests that he may have applied for federal disability retirement benefits. Any records related to his disability retirement claim may be relevant to all matters on appeal. Upon remand, the AOJ should seek clarification from the Veteran as to whether he has ever applied for federal disability retirement benefits and should undertake appropriate action to obtain any associated records. Also, updated VA treatment records should be secured upon remand. Lastly, following a January 2012 statement of the case, additional relevant evidence has been associated with the Veteran's claims file. This evidence includes VA treatment records dated from November 2011 to June 2017; the report of an April 2017 VA sinusitis examination; treatment records from INOVA Health System, National Spine & Pain Centers, Commonwealth Orthopaedics, Privia Medical Group, Koslow and Hunt MD, Metropolitan ENT, and INOVA Surgery Center at Franconia; and a May 2017 statement from the Veteran's wife. This relevant evidence has not been considered by the AOJ. Although the Veteran's substantive appeal was received prior to February 2, 2013, no waiver of initial AOJ consideration of the evidence has been received. See 38 C.F.R. § 20.1304 (c) (2017) (requiring remand for initial AOJ review of pertinent evidence "unless this procedural right is waived by the appellant or representative") and § 501 of the Honoring America's Veterans Act, Public Law No. 112-154, 126 Stat. 1165 (providing that 38 U.S.C. §7105(e), which allows for initial Board review of evidence submitted to it, applies to cases in which the substantive appeal was filed180 days after the date of the enactment of the Camp Lejeune Act, i.e., after February 2013. To the contrary, the Veteran's representative specifically indicated in its December 2017 Informal Hearing Presentation that initial AOJ consideration of the additional evidence was not waived. Hence, the Board is also required to remand the issues on appeal for issuance of the necessary supplemental statement of the case (SSOC). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete a formal application for a TDIU and to report his education and employment history and earnings, especially for the period since December 2008. 2. Ask the Veteran to clarify whether he has ever applied for federal disability retirement benefits. If he responds in the affirmative or fails to respond, contact the United States Office of Personnel Management and request all records relied upon in making the Veteran's disability retirement determination(s). All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e). 3. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for a cervical spine disability, sinusitis, a shoulder disability, an elbow disability, a knee disability, and a back disability, to include the dates of any such treatment. Ask the Veteran to complete authorizations for VA to obtain all records of his treatment for a cervical spine disability, sinusitis, a shoulder disability, an elbow disability, a knee disability, and a back disability from any sufficiently identified private treatment provider from whom records have not already been obtained. The AOJ shall attempt to obtain any relevant private treatment records for which a sufficient release is received. All efforts to obtain these records must be documented in the file. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e). 4. Obtain and associate with the file all updated records of the Veteran's treatment contained in the Washington Vista electronic records system dated since June 2017; and all such relevant records from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e). 5. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected cervical spine and thoracolumbar spine disabilities. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner should report all appropriate ranges of motion of the cervical spine and the thoracolumbar spine (in degrees) on both active motion and passive motion and in both weight bearing and non weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specifically answer the following question with respect to all appropriate ranges of motion of the cervical spine and the thoracolumbar spine: What is the extent of any additional limitation of motion of the cervical spine and the thoracolumbar spine (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use? In expressing the extent of any additional functional loss during flare-ups, the examiner must elicit from the Veteran information about the severity, frequency, duration, precipitating and alleviating factors and extent of functional impairment during flare-ups in accordance with the VA Clinician's Guide, Ch. 11. If the examiner is unable to estimate functional loss during flare-ups in terms of additional degrees of limited motion after physical examination and eliciting the pertinent information about the flare-ups noted above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up. The examiner should report if there is any ankylosis of the cervical spine or thoracolumbar spine. If ankylosis is present, the examiner should specify whether it is favorable or unfavorable and the angle at which the spine is held. The examiner should also report the total duration of any incapacitating episodes due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician during any 12 month period. The examiner should also specify any nerves affected by the service-connected cervical spine and thoracolumbar spine disabilities and provide an opinion as to the severity of any paralysis, neuritis, or neuralgia. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his spinal disabilities. 6. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected sinusitis with headaches. To the extent possible, VA should attempt to schedule the examination during a flare up of the Veteran's sinusitis (particularly during the spring or summer months, as reflected by a July 2016 examination report from Metropolitan ENT and a May 2017 statement from the Veteran's wife (VA Form 21-4138)). All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner should report the nature and severity of all symptoms associated with the Veteran's sinusitis, to include the number of episodes of sinusitis per year characterized by headaches, pain, tenderness of the affected sinus, purulent discharge, and/or crusting; whether sinusitis has required radical or repeated surgeries; and whether there is residual osteomyelitis. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his sinusitis. 7. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected left and right shoulder disabilities. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner should report all appropriate ranges of both left and right shoulder motion (in degrees) on both active motion and passive motion and in both weight bearing and non weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specifically answer the following question with respect to all appropriate ranges of left and right shoulder motion: What is the extent of any additional limitation of motion of the shoulder (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use? In expressing the extent of any additional functional loss during flare-ups, the examiner must elicit from the Veteran information about the severity, frequency, duration, precipitating and alleviating factors and extent of functional impairment during flare-ups in accordance with the VA Clinician's Guide, Ch. 11. If the examiner is unable to estimate functional loss during flare-ups in terms of additional degrees of limited motion after physical examination and eliciting the pertinent information about the flare-ups noted above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up. The examiner should also report the nature and severity of any ankylosis of the scapulohumeral articulation and any impairment of the humerus, clavicle, and scapula. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his shoulder disabilities. 8. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected left and right elbow disabilities. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner should report all appropriate ranges of both left and right elbow motion (in degrees) on both active motion and passive motion and in both weight bearing and non weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specifically answer the following question with respect to all appropriate ranges of left and right elbow motion: What is the extent of any additional limitation of motion of the elbow (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use? In expressing the extent of any additional functional loss during flare-ups, the examiner must elicit from the Veteran information about the severity, frequency, duration, precipitating and alleviating factors and extent of functional impairment during flare-ups in accordance with the VA Clinician's Guide, Ch. 11. If the examiner is unable to estimate functional loss during flare-ups in terms of additional degrees of limited motion after physical examination and eliciting the pertinent information about the flare-ups noted above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up. The examiner should report if there is ankylosis of either elbow and, if so, whether it is favorable or unfavorable and the angle at which the elbow is held. The examiner should also report the nature and severity of any impairment of the radius or ulna and whether there is any flail joint of either elbow. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his elbow disabilities. 9. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected left and right knee disabilities. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner should report all appropriate ranges of both left and right knee motion (in degrees) on both active motion and passive motion and in both weight bearing and non weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specifically answer the following question with respect to all appropriate ranges of left and right knee motion: What is the extent of any additional limitation of motion of the knee (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use? In expressing the extent of any additional functional loss during flare-ups, the examiner must elicit from the Veteran information about the severity, frequency, duration, precipitating and alleviating factors and extent of functional impairment during flare-ups in accordance with the VA Clinician's Guide, Ch. 11. If the examiner is unable to estimate functional loss during flare-ups in terms of additional degrees of limited motion after physical examination and eliciting the pertinent information about the flare-ups noted above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up. The examiner should report if there is ankylosis of either knee and, if so, the angle at which the knee is held. The examiner should also report whether there is subluxation or instability of either knee, and if present, provide an opinion as to its severity (i.e., slight, moderate, or severe). The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his knee disabilities. 10. If any benefit sought on appeal remains denied, the AOJ should issue an appropriate SSOC that considers all additional relevant evidence (including the VA treatment records dated since November 2011; the report of the April 2017 VA sinusitis examination; the treatment records from INOVA Health System, National Spine & Pain Centers, Commonwealth Orthopaedics, Privia Medical Group, Koslow and Hunt MD, Metropolitan ENT, and INOVA Surgery Center at Franconia; the May 2017 statement from the Veteran's wife; and all additional relevant evidence received since the January 2012 SOC). After the Veteran is given an opportunity to respond, the case should be returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are 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). _________________________________________________ Jonathan Hager 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).