Citation Nr: 18144320 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 00-18 621A DATE: October 24, 2018 REMANDED Entitlement to an initial disability rating in excess of 10 percent for a cervical spine condition with right C5-C6 radiculopathy is remanded. Entitlement to a disability rating in excess of 40 percent for thoracolumbar myositis with bilateral radiculopathy is remanded. Entitlement to a disability rating in excess of 10 percent for supraventricular tachycardia is remanded. Entitlement to an effective date prior to September 23, 2002 for the grant of service connection for radiculopathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for a cervical spine condition with right C5-C6 radiculopathy is remanded. 2. Entitlement to a disability rating in excess of 40 percent for thoracolumbar myositis with bilateral radiculopathy is remanded. The Veteran was last afforded VA examinations of his neck and back in November 2013. However, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that opinions could not be provided because the Veteran’s conditions were not currently flared up, the examiner did not ascertain adequate information from the record regarding how factors such as pain, weakness, and/or fatigability limit the Veteran’s functional ability of the cervical and lumbar spine during flare-ups and/or following repetitive use over time. On remand, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected neck and back disabilities. A September 2017 VA treatment record indicates treatment records from Dr. N. dated in June 2016 and June 2017 regarding the Veteran’s neurologic symptoms in his bilateral lower extremities were scanned and associated with Vista Imaging. See September 2017 Addendum to May 2016 Veterans Choice note. A remand is required to allow VA to obtain these records, and/or obtain authorization and request these records as necessary. 3. Entitlement to a disability rating in excess of 10 percent for supraventricular tachycardia is remanded. 4. Entitlement to an effective date prior to September 23, 2002 for the grant of service connection for radiculopathy of the right lower extremity is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2017 remand, the Board instructed the AOJ to obtain the Veteran’s VA treatment records dated from January 2017 to the present. Treatment records from the Orlando VA Medical Center dated from May 2017 to February 2018 were associated with the claims file, but the AOJ has not indicated that treatment records dated from January 2017 to May 2017 do not exist or are otherwise unavailable. On remand, the AOJ should obtain the outstanding VA treatment records, as well as any updated VA treatment records. In the July 2017 remand, the Board also instructed the AOJ to readjudicate the claims after the requested development had been completed, and issue a supplemental statement of the case if any benefit sought remained denied. However, the July 2018 supplemental statement of the case only readjudicated the issue of entitlement to TDIU. On remand, the AOJ should readjudicate all the issues as previously instructed by the Board. 5. Entitlement to TDIU is remanded. Finally, because a decision on the remanded increased rating issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2017 to May 2017, and from February 2018 to the present. 2. Obtain the copies of treatment records from Dr. N. dated in June 2016 and June 2017 scanned and associated with the Veteran’s VA treatment records through Vista Imaging in September 2017. Ask the Veteran to complete a VA Form 21-4142 for Dr. N., and make two requests for any other authorized records from that provider, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected neck and back disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s spine disabilities under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the cervical and lumbar spine disabilities alone and discuss the effect of the Veteran’s cervical and lumbar spine disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (CONTINUED ON NEXT PAGE) 4. After the above development, and any additionally indicated development, has been completed, readjudicate all the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Delhauer, Counsel