Citation Nr: 1802073 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-10 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for radiculopathy of the bilateral lower extremities, to include as secondary to service-connected lumbar spine sprain. 2. Entitlement to service connection for radiculopathy of the bilateral upper extremities, to include as secondary to service-connected lumbar spine sprain. 3. Entitlement to a rating higher than 10 percent for lumbar spine sprain. 4. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active service from May 1986 to May 1988. This matter comes before the Board of Veterans' Appeals (BVA or Board) from February 2011 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a hearing before the Board. The requested hearing was conducted in May 2016 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. The Board notes that in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) may be considered part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran recently raised the issue of entitlement to a TDIU. As such, the Board has jurisdiction over such issue as part and parcel of the Veteran's increased rating claim, and it has been listed on the first 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 Service Connection for Radiculopathy of the Bilateral Lower and Upper Extremities The Veteran asserts he has radiculopathy of the bilateral lower and upper extremities that is proximately due to or aggravated by his service-connected lumbar spine sprain. The record reflects that the Veteran underwent a VA examination in August 2011 during which time the examiner noted that the Veteran did not have peripheral neuropathy but provided diagnoses of cervical radiculopathy of the upper extremities and lumbar radiculopathy of the lower extremities. The VA examiner opined that the Veteran's cervical radiculopathy of the bilateral upper extremities is less likely than not due to his lumbar spine disability because radiculopathy of the upper extremity cannot be related to thoracolumbar spine pathology. Thereafter, the record reflects that the Veteran underwent additional testing. The December 2011 VA examination report notes that EMG and NCV tests of the lower extremities performed on December 22, 2011 and December 29, 2011 failed to reveal objective evidence of a radiculopathy of the lower extremities and that these findings were in concurrence with the underlying clinical findings noted by the August 2011 VA examiners which disclosed no sensorimotor deficits and normal deep tendon reflexes of the lower extremities on the physical examination. In regard to the upper extremities, EMG tests revealed no evidence of radiculopathy but there was evidence of a median neuropathy in the right hand and ulnar neuropathy of the left elbow. Thereafter, the Veteran submitted a private medical opinion indicating that he had radiculopathy of the bilateral lower extremities that was due to his lumbar spine disability. See April 2016 opinion from Dr. W.L. Significantly, while Dr. W.L. referenced the August 2011 VA examination diagnoses, he does not account for the negative EMG and NCV findings reported in the subsequent December 2011 VA examination report. Dr. W.L. also references a November 22, 2013 VA Physical Medicine and Rehabilitation Medicine record that documents a negative EMG of the left lower extremity for radiculopathy, but suggestive for findings of meralgia paresthetica. The Board will obtain an addendum opinion that addresses whether any findings added to the record since the December 2011 VA examination reflect that the Veteran now has a radiculopathy of the lower extremities due to the service connected low back disability. In addition, for the sake of completeness, an addendum opinion should also address whether the Veteran's median neuropathy in the right hand and ulnar neuropathy of the left elbow is secondary to the service connected low back disability. Increased Rating for Lumbar Spine The record reflects that the Veteran's most recent VA examination for his lumbar spine disability was conducted in August 2013. During the course of this appeal, a new precedential opinion that directly affects this case was issued. The United States Court of Appeals for Veterans Claims (Court) held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 (2017) states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. The August 2013 VA examination report does not comply with Correia. Accordingly, the Board finds that a new VA examination is required. TDIU The Board notes that the Veteran's attorney requested that the Board grant entitlement to a TDIU on an extraschedular basis, despite the issue not yet being adjudicated in the first instance by the RO. The Veteran's attorney cited to a previous Board decision, which granted entitlement to an extraschedular TDIU, in the first instance, for a different Veteran. The Board is precluded from assigning an extraschedular TDIU in the first instance without first referring the case to VA's Director of Compensation Service. See 38 C.F.R. § 4.16(b); Wages v. McDonald, 27 Vet. App. 233, 236 (2015). A remand is necessary to complete further development for this issue. The AOJ is requested to afford the Veteran proper notice under the VCAA as related to a TDIU claim, and adjudicate the issue in the first instance. Accordingly, the case is REMANDED for the following action: 1. Please provide the Veteran with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for TDIU. The Veteran should be requested to complete and submit VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Please obtain an addendum opinion in regard to the claim for service connection for radiculopathy of the bilateral lower extremities. The claims folder must be made available to the examiner for review. In light of evidence added to the record since the December 2011 VA examination report which noted that EMG and NCV tests of the lower extremities performed on December 22, 2011 and December 29, 2011 failed to reveal objective evidence of a radiculopathy of the lower extremities, is there any evidence that changes such assessment? The examiner is asked to specifically comment on the April 2016 opinion from Dr. W.L. which notes that the Veteran has radiculopathy of the bilateral lower extremities that is due to his lumbar spine disability, and references a November 22, 2013 VA Physical Medicine and Rehabilitation Medicine record that documents a negative EMG of the left lower extremity for radiculopathy, but suggestive for findings of meralgia paresthetica. 3. Please obtain an addendum opinion in regard to the claim for service connection for radiculopathy of the bilateral upper extremities. The claims folder must be made available to the examiner for review. In light of the December 2011 VA examination diagnosis that while the Veteran does not have radiculopathy of the bilateral upper extremities, he does have median neuropathy in the right hand and ulnar neuropathy of the left elbow, for the sake of completeness, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's median neuropathy in the right hand and ulnar neuropathy of the left elbow is caused by OR aggravated (beyond a natural progression) by his service-connected lumbar spine sprain. All opinions must be supported by a clear rationale. 4. Afford the Veteran a VA examination to determine the current severity of his lumbar spine strain. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the lumbar spine and the degree at which pain begins. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the lumbar spine cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. 5. The RO should consider whether to refer this case to the Director, Compensation Service, for a determination of whether the Veteran is entitled to a TDIU on an extraschedular basis. 6. After the Veteran has been given adequate time to respond, readjudicate his claims, to include entitlement to a TDIU. If the claims remain denied, issue to the Veteran and his representative a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).