Citation Nr: 18144786 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-02 172 DATE: October 25, 2018 REMANDED Entitlement to service connection for a neck disability, to include as secondary to service-connected degenerative disc disease (DDD) with scoliosis, is remanded. Entitlement to service connection for tingling and numbness of the left upper extremity, to include as secondary to service-connected degenerative disc disease (DDD) with scoliosis, is remanded. Entitlement to service connection for tingling and numbness of the right upper extremity, to include as secondary to service-connected degenerative disc disease (DDD) with scoliosis, is remanded. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease (DDD) with scoliosis is remanded. Entitlement to an initial evaluation in excess of 20 percent for right knee instability is remanded. Entitlement to an initial evaluation in excess of 20 percent for osteoarthritis of the right knee with scar is remanded. Entitlement of an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to total disability due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from June 1978 to September 1984 and December 1984 to September 1998. This appeal comes to the Board of Veterans’ Appeals (Board) from June 2012, December 2012, April 12, 2014 and January 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2016, the Veteran requested a hearing before the Board in his VA Form 9, substantive appeal. A hearing was scheduled for July 2018. In correspondence dated that same month, the Veteran’s representative informed the Board that the Veteran waived his right to testify at the scheduled hearing. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2018). Regarding the Veteran’s claim for a TDIU rating, because he has been awarded a 100 percent rating for his service-connected persistent depressive disorder with persistent major depressive disorder, effective from July 18, 2012, his TDIU claim was developed and adjudicated as a claim for a TDIU rating prior to that date. However, the grant of a 100 percent rating for a single service-connected disability does not necessarily negate a claim for TDIU from that date, if there are other disabilities upon which a TDIU rating may be based. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). In this case, the record reflects assertions by the Veteran that he is unemployable based on service-connected disabilities other than his persistent depressive disorder with persistent major depressive disorder. Accordingly, his claim for a TDIU rating has been recharacterized to reflect consideration for the entire period on appeal, and is not limited to the period prior to July 18, 2012. 1. Entitlement to service connection for a neck disability, tingling and numbness of the left upper extremity, and tingling and numbness of the right upper extremity, to include as secondary to service-connected DDD with scoliosis. The Veteran’s primary military occupational specialty (MOS) was aircraft firefighting and rescue specialist. His duties included supervising other Marines while conducting extinguishing aircraft fires and extracting and rescuing pilots. The Veteran contends that the physical nature of his MOS over twenty years of active service had an adverse effect on his back and knees causing total disability. The Veteran was afforded a VA examination in April 2014, to evaluate the nature and etiology of the claimed disabilities of his neck and right and left upper extremities. The VA examiner diagnosed the Veteran with intervertebral disc syndrome of the cervical spine affecting bilateral upper, middle and lower cervical radicular groups, degenerative joint disease of the cervical spine and postoperative cervical spine fusion and multiple laminectomies with residual intervertebral disc syndrome of the cervical spine. The April 2014 VA examiner did not offer an opinion regarding whether the Veteran’s claimed disabilities were directly related to service. Further, while the VA examiner opined that the Veteran’s claimed neck, right upper extremity and left upper extremity were proximately due to his service-connected condition, the plain language of the rationale contradicts that finding. The duty to assist requires that if the Veteran is afforded a VA examination, it be an adequate one. The Board finds that the April 2014 VA examination is inadequate because it does not provide a rationale for the examiner’s opinion and does not properly address secondary service connection. Accordingly, remand for a new VA examination regarding the Veteran’s claimed disabilities of his neck and bilateral upper extremities is warranted. 2. Entitlement to an increased initial evaluations for DDD with scoliosis, right knee instability, and osteoarthritis of the right knee with scar. The Veteran seeks an increased rating in the initial evaluation for his DDD with scoliosis and his right knee disability. The record reflects that the Veteran was last provided a VA examination in conjunction with his service-connected DDD with scoliosis and right knee disability in February 2012. Subsequent to that VA examination, the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In addition, as relevant to the present case, the Court stated in Correia that knees were “undoubtedly weight-bearing.” Id. As the previous February 2012 examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new VA examination is necessary prior to the Board adjudicating the claim. 3. Entitlement to an increased initial evaluation for radiculopathy of the right lower extremity. The Veteran seeks an increase in his initial rating for radiculopathy of the right lower extremity. The Board notes that the initial 10 percent rating was based on the February 2012 VA examination finding of radiculopathy of the right lower extremity. The report indicated that the Veteran required a cane because of a right leg limp. The Veteran also reported that flare-ups impacted the function of the knee and/or lower leg daily. However, it remains unclear to the Board what if any functional loss the Veteran experiences. The Veteran submitted a private medical opinion dated April 2013 which diagnosed unspecified neuralgia and radiculitis. The private examiner indicated that the Veteran experienced pain, numbness and tingling in all four extremities. As a result, the Veteran was limited in his ability to sit, stand or walk to less than 2 hours in an eight-hour work day. Further, the private examiner indicated that the Veteran periodically experienced pain or other symptoms severe enough to interfere with attention and concentration. A claimant is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327 (2018). The Board finds that remand is warranted here to determine the level of functional loss caused by the Veteran’s right lower extremity radiculopathy. The Veteran’s private treatment provider indicated that the Veteran is seen every three months. Since this matter is being remanded, the RO with assistance from the Veteran should update the claims file with pertinent treatment records in order to present a clearer picture of the nature of the Veteran’s right lower extremity radiculopathy. 4. Entitlement to TDIU. The claim for a TDIU is being remanded pending adjudication of the increased rating claims, as it is inextricably intertwined with the outcome of the same. Two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. With the Veteran’s assistance, obtain all relevant and outstanding VA and private medical records and associate them with the claims file. All attempts to obtain these records must be documented in the file. 2. After the above development, schedule the Veteran for a VA examination to determine the nature and etiology of his neck and bilateral upper extremities disorder. The Veteran’s claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide an opinion responding to the following: (a.) With respect to the Veteran’s period of active duty service, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s neck disability, right upper extremity disability and left upper extremity disability are each etiologically related to his active service, to specifically include his duties as aa aircraft firefighting and rescue specialist, therein. (b.) With respect to the Veteran’s period of active duty service, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s neck disability, right upper extremity disability and left upper extremity disability are each caused or aggravated (that is, permanently worsened) by his service-connected DDD with scoliosis. 3. Then, schedule the Veteran for a new VA examination to evaluate the nature of his DDD with scoliosis, right knee disability and right lower extremity radiculopathy. (a.) The examiner should describe the nature and severity of all manifestations of the Veteran’s DDD with scoliosis, right knee disability and right lower extremity radiculopathy. (b.) The examiner must also test and record the range of motion for joints in active motion, passive motion, weight-bearing, and non-weight 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 why that is so. (c.) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. (d.) The physician should clearly indicate whether the Veteran has neurological manifestations of the DDD with scoliosis and right knee disability, to include right lower extremity radiculopathy. The examiner should also specify which nerve(s) is involved and the degree of paralysis (complete or incomplete: mild, moderate, moderately severe or severe) for each affected nerve. (e.) The physician should also indicate whether, at any point the Veteran’s DDD with scoliosis, right knee disability and right lower extremity radiculopathy has increased in severity, and, if so, the approximate date(s) of any such change(s). In addition, the examiner should reference any daily or occupational impairment associated any or all of said disabilities. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Alexander, Associate Counsel