Citation Nr: 18146535 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 08-22 192 DATE: October 31, 2018 REMANDED Entitlement to an initial rating in excess of 20 percent from August 10, 2015 for degenerative arthritis of the right shoulder is remanded. Entitlement to a rating in excess of 20 percent from May 13, 2005 for degenerative disc disease (DDD) of the cervical spine with spasms is remanded. Entitlement to a rating in excess of 20 percent from May 13, 2005 for DDD of the lumbosacral spine is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1977 to July 1981, and from November 1981 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction now resides with St. Louis, Missouri RO. In May 2016, the Board denied an initial rating in excess of 10 percent prior to August 10, 2015 and granted an increased rating to 20 percent as of that date for degenerative arthritis of the right shoulder. The Board also remanded the increased rating claims for DDD of the cervical and lumbosacral spines for further evidentiary development. In an October 2016 rating decision, the Agency of Original Jurisdiction (AOJ) effectuated the Board's grant of an increased rating to 20 percent for degenerative arthritis of the right shoulder, effective August 10, 2015-and also obtained VA medical records and VA examinations in October 2016 to assess the current nature and extent of the DDD of the Veteran's cervical and lumbosacral spine in compliance with the May 2016 remand directives. The Veteran appealed the Board's May 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2016, the Court vacated that portion of the Board's May 2016 decision that denied a disability rating in excess of 20 percent for degenerative arthritis of the right shoulder from August 10, 2015 and remanded the matter to the Board for further consideration pursuant to an October 2016 Joint Motion for Partial Remand (JMPR). In July 2017, the Board remanded the claims for further development. Specifically, the Board directed the AOJ to obtain new VA examinations to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), which requires testing on active and passive movement as well as with weight and non-weight bearing. The Board regrets the additional delay, but a remand is required in this case. In a September 2018 Statement in Support of Claim, the Veteran indicated that there were outstanding treatment records. He stated that he had sought treatment at the Jacksonville Naval Station Hospital. Specifically, he stated In reference to the letter that I received dated August 18, 2018 with the decision on the Claim that I filed in 2012 for my lower back condition that involves a herniated disc. The letter that I received stated that I have not gone to the doctor for the condition. That is incorrect, I did not have surgeries, but I began taking Tramadol for pain since that time which was prescribed by my doctor. However, I had an episode this year in February where I woke up one Saturday morning and could barely walk with the pain so bad in my back. I had to go to the emergency room at the Jacksonville Navy base. I received treatment of an injection on my hip and was given pain medication. That following Wednesday I went back to the emergency room at the VA medical center in Orlando, Fla. For more treatment due to the first medicine did not help. I went to physical therapy at the Navy hospital for several weeks and still have the issues of numbness, tingling in my left leg down to my toes. I later had another session of physical therapy and I later had a series of (3) cortozone injections in my spine for the inflamed sciatic nerve that is caused by the disc pressing on it. I had an MRI done that shows the disc pressing on the nerve. The treatment records from the Jacksonville Navy hospital are not currently associated with the record. Therefore, upon remand, the Board directs the AOJ to obtain all outstanding medical records to ensure that due process is followed and that there is a complete record upon which to decide that appellant's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). 1. Entitlement to an initial rating in excess of 20 percent from August 10, 2015 for degenerative arthritis of the right shoulder is remanded. 2. Entitlement to a rating in excess of 20 percent from May 13, 2005 for degenerative disc disease (DDD) of the cervical spine with spasms is remanded. 3. Entitlement to a rating in excess of 20 percent from May 13, 2005 for DDD of the lumbosacral spine is remanded. The Veteran is claim seeking higher ratings for his service-connected degenerative arthritis of the right shoulder, and degenerative disc disease of the cervical and lumbar spine, each currently evaluated as 20 percent disabling. Before these claims may be adjudicated, VA must obtain more detailed range of motion findings and findings regarding functional loss, per the recent precedential decisions of Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint), and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). 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 these claims. A specific request should be made for authorization to obtain any private treatment records, as reported in his September 2018 correspondence to the Board, to include the Jacksonville hospital emergency room noted and the Jacksonville Navy Hospital. See, e.g., September 2018 Statement in Support of Claim. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 2. Thereafter, schedule the Veteran for VA examinations to address the current severity of his cervical spine, thoracolumbar spine and right shoulder disorders. The examiner must review the Veteran’s Legacy Content Manager and VBMS files. The examiner should indicate in the opinion that all pertinent records were reviewed. All clinical findings must be reported in detail and correlated to a specific diagnosis. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. The examiner should also address the severity (i.e., favorable or unfavorable) and location of any ankylosis, and note any functional limitation caused by the disorders. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • 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 why that is so. All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings. The examiner should also identify all neurologic complications of the thoracolumbar and cervical spines considering private and VA treatment records which reflect a diagnosis of lumbar radiculopathy. 3. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claims should be readjudicated. The AOJ should separately address and rate any neurologic complications of the thoracolumbar and cervical spines. (continued on next page) If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael J. O'Connor