Citation Nr: 18141323 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-04 812 DATE: October 10, 2018 REMANDED Entitlement to an increased rating for degenerative joint disease (DJD) of the cervical spine, rated 20 percent disabling, is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from August 1979 to December 2000. This matter comes before the Board of Veterans’ Appeals (Board) from A December 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO) which addressed multiple issues. In pertinent part, that rating decision granted service connection for radiculopathy of the right lower extremity (due to service-connected lumbosacral DJD) and assigned an initial 10 percent disability rating (under Diagnostic Code 8726, neuralgia of the anterior crural (femoral nerve); and granted service connection for left lower extremity radiculopathy (due to service-connected lumbosacral DJD) and assigned an initial 20 percent disability rating (under Diagnostic Code 8726, neuralgia of the anterior crural (femoral nerve). The Veteran’s Notice of Disagreement (NOD) to many of the adjudications in the December 2012 rating decision was received on February 13, 2013. In response to the February 2013 NOD, a December 2, 2014 SOC was issued and addressed, in pertinent part, the ratings for radiculopathy of each lower extremity, cervical DJD, and bilateral hearing loss. An April 2014 rating decision granted service connection for posttraumatic stress disorder (PTSD) which was assigned an initial 30 percent disability rating, effective March 14, 2014. The Veteran’s NOD to this initial 30 percent rating was received on June 17, 2014. A December 9, 2014 rating decision retroactively increased the 30 percent rating for PTSD to 50 percent to March 14, 2014. The combined disability rating was 90 percent. A Statement of the Case (SOC) was issued on December 10, 2014. The Veteran’s VA Form 9, Appeal to the Board, was received on January 21, 2015, in which he reported that he did not desire a Board hearing. He also specifically limited his appeal to the ratings assigned for radiculopathy of each lower extremity, cervical DJD, and bilateral hearing loss. Under 38 C.F.R. § 4.16(a) entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) rating may be established if a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities and had one such disability rated 60 percent or one rated 40 percent with other service-connected disorder resulting in a combine evaluation of 70 percent or more. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this, by email correspondence of July 10, 2014, from VA to the Veteran, it was stated that in his NOD he had referenced having problems that resulted in the loss of his job. He was informed of the requirements for a TDIU rating and was asked if he desired to file a claim for a TDIU rating. There was no response to the inquiry of whether he desired a TDIU rating. Parenthetically, the Board notes that the December 2014 VA psychiatric examination indicated that he continued to do well as far as doing his work as a self-employed contractor in the aviation analysis business. An April 11, 2015, Statement of Accredited Representative in Appealed Case (In Lieu of VA Form 646) addressed only the four issues addressed in the VA Form 9, which were (1) the 20 percent rating for left lower extremity radiculopathy; (2) the 10 percent rating for right lower extremity radiculopathy; (3) the 20 percent rating for cervical DJD; and (4) the noncompensable rating for bilateral hearing loss. It was stated that the Veteran’s VA Form 9 had limited his appeal to these three issues. An April 30, 2015, RO letter to the Veteran confirmed that his appeal for an increased rating for PTSD was withdrawn, as requested and in accordance with his service representative’s letter dated April 13, 2015. Accordingly, the only issues on appeal before the Board are (1) the 20 percent rating for left lower extremity radiculopathy; (2) the 10 percent rating for right lower extremity radiculopathy; (3) the 20 percent rating for cervical DJD; and (4) the noncompensable rating for bilateral hearing loss. In July 2015 the Veteran submitted additional evidence without reserving the right to have such evidence initially reviewed by the RO. Because the Veteran perfected his appeal in January 2015, and did not request that the agency of original jurisdiction (AOJ) initially review the evidence, this evidence is subject to initial review by the Board. See 38 U.S.C. § 7015(e)(1) (providing for automatic waiver of initial RO review of evidence subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013). Thus, the Board accepts this evidence for inclusion in the record. As noted by the Veteran’s service representative in the Appellant’s Brief, the Veteran was last afforded comprehensive VA examinations of the service-connected disorders at issue in September 2012. It was asserted that these examinations were too old to adequately evaluate the severity of the service-connected disorders at issue. In this regard, VA outpatient treatment (VAOPT) records show that in November 2014 it was noted that following a lumbar medial branch block he had about 2 to 3 hours of pain relief but that his pain was now back up to 8 on a scale of 10 in his low back and down both legs. Also in November 2014 he was prescribed Oxycodone to episodes of extreme pain. CAPRI records show that in November 2016 a letter from a staff physician to the Veteran stated that lumbar and cervical MRIs done over the weekend were reviewed but the physician was unable to correlate all the findings with the Veteran’s symptoms and, thus, it was requested that the Veteran meet with VA pain specialists in the hope that they could offer some injections that would relieve his pain. The Board concurs that for up-to-date VA rating examinations are in order. However, the Board notes that the Veteran is also service-connected for a chronic left knee strain, scars of the right thigh, and a muscle injury of the right thigh. The matters are REMANDED for the following action: 1. Afford the Veteran a VA neurology examination to determine the severity of the Veteran’s neuralgia of the anterior crural (femoral) nerve of each lower extremity. The Veteran’s electronic records should be made available to the examiner, and the examiner should review the same in conjunction with the examination, and the examiner should annotate his or her report as to whether the electronic records were reviewed. The examiner is requested to record findings as to the severity of the Veteran’s right and left anterior crural (femoral) neuropathy, including all manifestations of sensory or motor impairment, or both, if any. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies should be accomplished, to include an electromyogram or nerve conduction velocity studies, or both, if indicated. The examiner should clearly indicate whether there is impairment or dysfunction due to Veteran’s right or left anterior crural (femoral) neuropathy, or both, and whether such impairment is solely sensory or also affects motor function. The examiner is requested to classify whether such impairment is (a) mild, (b) moderate, or (c) severe. 2. The Veteran should be afforded VA orthopedic examination to determine the extent and severity of his service-connected cervical DJD. The examination should include any tests or studies deemed necessary for an accurate assessment. X-ray examination of the cervical spine should be performed, if needed. The Veteran’s electronic records should be made available to the examiner for review before the examination. The orthopedist should (1) record the range of motion of the cervical spine, and describe the limitation of motion, if any, in terms of the degrees of painless motion and the degrees of painful motion, if any; (2) indicate whether the Veteran has ankylosis of the cervical spine; and, if so, whether it is favorable or unfavorable; and (3) specifically comment on the functional limitations, if any, caused by the Veteran's cervical DJD, including, if possible, during flare-ups. Any functional loss, including the inability to perform normal working movements with normal excursion, strength, speed, coordination, and endurance should be noted. The examiner should specify any functional loss due to pain or weakness, and document all objective evidence of those symptoms. In addition, the examiner should provide an opinion on the degree of any functional loss likely to result from a flare-up of symptoms or on extended use. The examiner should also document, to the extent possible, the frequency and duration of exacerbations of symptoms. 3. Schedule the Veteran for a VA audiological examination to determine the current level of severity of his service-connected bilateral hearing loss. The Veteran’s electronic medical records should be made available to and be reviewed by the examiner, if needed. Any tests or studies deemed necessary should be conducted, to specifically include audiometric testing, and the results should be reported in detail. The examiner must also fully describe the functional effects caused by the Veteran's hearing disability. If the auditory thresholds from the current examination differ significantly from the results of other tests, the VA examiner should explain the reason why there is a difference, if possible. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs