Citation Nr: 18141332 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 11-02 136 DATE: October 11, 2018 REMANDED Entitlement to service connection for a right shoulder disorder, to include as secondary to a service-connected left arm disability, is remanded. Entitlement to service connection for a lumbar spine disorder, to include as secondary to a right hip disorder, is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for sciatica, to include as secondary to lumbar spine disorder and a right hip disorder, is remanded. Entitlement to an initial evaluation in excess of 20 percent for degenerative joint disease of the cervical spine is remanded. Entitlement to an evaluation for status post fracture left clavicle with nonunion of the humerus and removal of distal clavicle, currently evaluated as 20 percent disabling prior to December 30, 2014, and 50 percent disabling thereafter, is remanded. Entitlement to an initial evaluation for residuals of a right foot injury, currently evaluated as noncompensable prior to December 29, 2014, and 10 percent thereafter, is remanded. Entitlement to an initial compensable evaluation for left ear hearing loss is remanded. Entitlement to an initial evaluation in excess of 10 percent for chronic recurrent headaches is remanded. Entitlement to an initial evaluation in excess of 50 percent for depressive disorder is remanded. REASONS FOR REMAND The Veteran had active duty service from December 1979 to December 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2008, November 2008, and November 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in February 2018. A transcript of that hearing has been associated with the claims file. The Board also notes that the Veteran’s appeal had originally included a claim for service connection for tinnitus. However, the Agency of Original Jurisdiction (AOJ) granted service connection for tinnitus in a November 2010 rating decision. The grant of service connection constitutes a full award of the benefits sought. Additionally, while the Veteran filed a notice of disagreement for entitlement to an increased evaluation for a left upper extremity peripheral nerve injury and a total disability rating based on individual unemployability (TDIU), a substantive appeal was not filed for either claim. Thus, those matters are not in appellate status and will not be addressed in the decision below. 1. Increased evaluation claims The Veteran was most recently afforded VA examinations in December 2014 and January 2015 in connection with her claims for increased evaluations for her service-connected cervical spine disability, depressive disorder, residuals of a right foot injury, migraines, left arm disability, and left ear hearing loss. During her February 2018 hearing, the Veteran reported worsening of symptoms for all of those disorders. VA’s General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that additional VA examinations are needed to ascertain the current severity and manifestations of her service-connected disabilities. Such examinations should also comply with the decision issued by the United States Court of Appeals for Veterans Claims (Court), Correia v. McDonald, 28 Vet. App. 158 (2016), where applicable. 2. Service connection - Right shoulder disorder The Veteran was afforded a VA examination for her right shoulder claim in August 2008. The VA examiner provided a negative nexus opinion, but did not provide any rationale in support of that opinion. The examiner also did not discuss the Veteran’s service treatment records, which mention treatment for her right shoulder in June 1985. As such, an additional VA medical opinion is needed. 3. Service connection – Low back disorder, Sciatica disorder, Right hip disorder The Veteran was afforded a VA examination in August 2010, which addressed her bones and joints. The VA examiner provided a diagnosis for the low back and right hip, but did not provide a nexus opinion for those conditions. As such, the Veteran should be afforded another VA examination, which includes medical opinions. 4. Service connection – Right ear hearing loss The Board finds that the Veteran’s right ear hearing loss claim is inextricably intertwined with the claim for an increased evaluation for left ear hearing loss being remanded herein, as this claim is being remanded for an audiological examination. Such an examination may reveal relevant results for the right ear hearing loss claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined issue. If right ear hearing loss is found, a nexus opinion should be obtained. 5. Outstanding records The Board further notes that the record indicates that the Veteran may be receiving Social Security Administration (SSA) benefits. However, the SSA decision and any records on which that decision was based are not in the claims file. As such, these records should be obtained and associated with the claims file Additionally, as the claims are being remanded for further development, the Veteran should be afforded another opportunity to submit a signed release for Dr. M.J. (initials used to protect privacy), her chiropractor. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for her right shoulder, hearing loss, cervical spine, depressive disorder, right foot, migraine, sciatica, low back, right hip, and left arm, to include Dr. M.J., a chiropractor. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. The AOJ should request a copy of any SSA decisions to grant or deny disability benefits and the records upon which the decision(s) was based and associate them with the claims file. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 3. After the foregoing development has been completed, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of her service-connected status post fracture left clavicle with nonunion of the humerus and removal of distal clavicle. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s post-service medical records and assertions. It should be noted that the Veteran is considered competent to attest to factual matters of which she has had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s service-connected left arm disability. In particular, the examiner should provide the range of motion in degrees and test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for both the right and left shoulders/arms. 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 so in the report. The examiner should also indicate whether there is any form of ankylosis or impairment of the humerus, such as malunion, recurrent dislocation at the scapulohumeral joint, fibrous union, nonunion (false flail joint), and loss of head (flail shoulder). He or she should also indicate whether there is any impairment of the clavicle or scapula, such as malunion, nonunion with or without loose motion, or dislocation. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made to the examiner for review. 4. After the above development has been completed, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of her depressive disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s disability under the General Rating Formula for Mental Disorders. He or she should specifically address any social and occupational impairment attributable to the Veteran’s service-connected depressive disorder. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available for review. 5. After the above development has been completed, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of her service-connected right foot disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s right foot disability under the rating criteria. In particular, the examiner should indicate whether the Veteran’s foot disorder is moderate, moderately severe, severe, or has resulted in the actual loss of foot. The examiner should identify and describe any symptoms attributable to the disability and any resulting impairment. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability, including additional limitation of motion, due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of her service-connected headaches. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the disability under the rating criteria. Specifically, the examiner should address the frequency and duration of the Veteran’s headaches, including the frequency of prostrating attacks and whether those attacks are productive of severe economic inadaptability. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 7. After the above development has been completed, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of her service-connected cervical spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the disability. In particular, he or she should provide the range of motion in degrees and test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-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 so in the report. The examiner should also indicate whether there is any form of ankylosis and state the total duration of incapacitating episodes during the past 12 months. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability, including any additional loss of motion, due to those factors. In addition, the examiner should identify any and all associated neurologic abnormalities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 8. After the above development has been completed, the Veteran should be afforded a VA examination to determine the severity and manifestation of the Veteran’s service connected left ear hearing loss and any right ear hearing loss that might be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. 9. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000 and 4000 Hertz, provide the puretone threshold average, and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. The examiner must also fully describe the functional effects caused by the hearing disability in the report. Additionally, if if, right ear hearing loss is found upon examination, the VA examiner should opine as to whether it is at least as likely as not that the Veteran has current right ear hearing loss that is causally or etiologically related to her military service, to include any noise exposure therein. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 10. After the above development has been completed, the Veteran should be afforded a VA examination(s) to determine the nature and etiology of any right hip disorder, lumbar spine disorder, and/or sciatica that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current right hip disorder, lumbar spine disorder, and/or sciatica that is causally or etiologically related to her military service, to include any injury or symptomatology therein. The examiner should also opine as to whether it is at least as likely as not that the Veteran has a low back disorder that is either caused by or aggravated by a right hip disorder. The examiner should then opine as to whether it is at least as likely as not that the Veteran has sciatica that is either caused by or aggravated by a lumbar spine and/or right hip disorder. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 11. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any right shoulder disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current right shoulder disorder that is causally or etiologically related to her military service, to include any injury or symptomatology therein. The examiner should also opine as to whether it is at least as likely as not that the Veteran has a right shoulder disorder that is either caused by or aggravated by her service-connected left shoulder disability, to include due to overuse of the right shoulder due to limitations of the left shoulder. The examiner should also specifically address the Veteran’s June 1985 service treatment records, which mention treatment for the Veteran’s right shoulder. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 12. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel