Citation Nr: 1804968 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-49 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with depressive disorder and traumatic brain injury from February 19, 2010 to June 16, 2014, and in excess of 50 percent as of June 16, 2014. 2. Entitlement to a disability rating in excess of 10 percent for a right knee disability. 3. Entitlement to a disability rating in excess of 10 percent for a left knee disability. 4. Entitlement to a disability rating in excess of 10 percent for a left shoulder disability. 5. Entitlement to a disability rating in excess of 10 percent for right carpal tunnel syndrome (CTS). 6. Entitlement to a disability rating in excess of 10 percent for left CTS. 7. Entitlement to a disability rating in excess of 10 percent for a cervical spine disability. 8. Entitlement to a compensable disability rating for mild traumatic brain injury (TBI) with residual headaches prior to August 11, 2010, and a rating in excess of 10 percent since. 9. Entitlement to a disability rating in excess of 10 percent for a thoracic spine disability since August 11, 2010. 10. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Jan Dils, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from July to November 1974 and from October 2003 to June 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2010, June 2010, September 2010, and November 2010 rating decisions of a VA Regional Office (RO). In July 2013, the Veteran testified at a hearing before the undersigned. These matters were previously before the Board in November 2013. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As an initial matter, the Board notes that the most recent VA medical records reflecting treatment for the Veteran are dated in March 2014. At his hearing, the Veteran indicated that the VA was his sole provider for medical treatment. See Hearing Transcript, p. 6. As the record reflects that the Veteran was receiving ongoing treatment from the VA, updated records should be sought. In addition, a September 2013 VA medical record shows that the Veteran underwent physical therapy through a fee-based provider, Williamson Physical Therapy. It appears that the records reflecting this treatment were scanned into the online records system, but the treatment is not viewable in the available records. On remand, these treatment records should be added to the record. At this hearing, the Veteran indicated that he would be applying for disability benefits from the Social Security Administration (SSA). See Hearing Transcript, p. 33. On remand, a request should be made for the Veteran's records from the SSA. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The Veteran was provided with VA examinations in June 2014 to determine the current nature and severity of his back, neck, bilateral knee, and left shoulder disabilities. Since these examinations were provided, the Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, issued a decision finding that VA examinations for musculoskeletal conditions must 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. 28 Vet.App. 158 (2016). The current evidence does not reflect that such range of motion testing was done. Additionally, the Court recently held that an examiner must obtain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding flares by alternative means in order to estimate functional loss during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). Thus, on remand, the Veteran will be afforded current VA examinations to ascertain the current severity and manifestations of his back, neck, bilateral knee, and left shoulder disabilities addressing the criteria set out in Correia and Sharp. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records dated from March 2014 to the present. In addition, add to the file the records reflecting the fee-based Physical Therapy treatment provided by Williamson Physical Therapy as noted in the September 13, 2013 VA medical record. 2. The RO should request from the Social Security Administration (SSA) a copy of any disability determinations concerning the Veteran, as well as copies of all medical records underlying any such determination. 3. Then, schedule the Veteran for a VA examination to determine the severity of his back, neck, bilateral knee, and left shoulder disabilities. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, the relevant joints must be tested for pain in active and passive range of motion testing as well as weight-bearing and nonweight-bearing testing, and if possible, with the range of the opposite undamaged joint. If such range of motion testing cannot be completed, the examiner must explain why this is so. The examiner is requested to specifically address the extent, if any, of functional loss of use of the relevant joint due to pain/painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent - such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. The examiner is advised that the Veteran is competent to report limitation during flare-ups and that statements about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment from flares must be considered and can be used to estimate additional range of motion loss during a flare-up or after repeated use. Mere lack of occasion to observe the joint during a flare-up is an insufficient basis for finding it speculative to respond. 4. Readjudicate the issues on appeal. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran 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). _________________________________________________ M. HYLAND 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).