Citation Nr: 18148417 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 10-37 176 DATE: November 7, 2018 REMANDED Entitlement to an initial rating in excess of 20 percent for lumbar spine facet spondylosis with bilateral sacroiliac joint dysfunction is remanded. Entitlement to an initial rating in excess of 10 percent for hypertension is remanded. Entitlement to an initial compensable rating for alopecia is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded. Entitlement to an initial compensable rating for status post right mandibular body fracture with temporomandibular joint dysfunction (TMJ) from October 1, 2008, and a rating in excess of 10 percent from August 21, 2017, is remanded. REASONS FOR REMAND The Veteran had active duty military service from September 1988 to September 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2009 rating decision, the RO granted service connection for a lumbar spine disability and assigned a 10 percent disability rating, granted service connection for radiculopathy of the right and left lower extremity and assigned 10 percent disability ratings, respectively, granted service connection for hypertension and assigned a 10 percent disability rating, granted service connection for alopecia and assigned a noncompensable rating, and granted service connection for status post right mandibular body fracture and assigned a noncompensable rating, which were all effective on October 1, 2008. In a February 2018 rating decision, the RO increased the disability rating for the Veteran’s lumbar spine disability and right lower extremity to 20 percent, respectively, effective October 1, 2008. In an October 2018 rating decision, the RO increased the disability rating for status post right mandibular body fracture with TMJ to 10 percent, effective August 21, 2017. 1. Entitlement to an initial rating in excess of 20 percent for lumbar spine facet spondylosis with bilateral sacroiliac joint dysfunction is remanded; 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded; 3. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded. VA examinations were performed in February 2009 and March 2013 with respect to the Veteran’s claim of an increased rating for his service-connected lumbar spine disability and associated radiculopathy. However, the Board finds that these examinations are inadequate. In this regard, while active range of motion testing was performed, the examiners did not conduct and include findings for range of motion testing of his lumbar spine in passive motion, weight-bearing motion, and non-weight-bearing motion in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Furthermore, during the examination in March 2013 the Veteran reported flare-ups of pain. However, the examiner did not estimate motion loss in terms of degrees during periods of flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, the Board finds that a new VA examination is warranted in order to assess the current severity of the Veteran’s lumbar spine disability and associated radiculopathy. 4. Entitlement to an initial rating in excess of 10 percent for hypertension is remanded. The Veteran was afforded a VA examination in February 2009 to assess the severity of his hypertension. Subsequently, in statements dated in February 2010 and May 2015, the Veteran indicated that his family doctor increased his blood pressure medication to control his hypertension and his health steadily decreased. Given these statements, along with the fact that the last examination was conducted over nine years ago, the Board finds that the February 2009 examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of his hypertension. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a Veteran claims the disability is worse than originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Accordingly, a remand is necessary in order to afford the Veteran an additional VA examination to adequately assess the current severity of his hypertension. 5. Entitlement to an initial compensable rating for status post right mandibular body fracture with temporomandibular joint dysfunction (TMJ) from October 1, 2008, and a rating in excess of 10 percent from August 21, 2017, is remanded; 6. Entitlement to an initial compensable rating for alopecia is remanded. In the March 2009 rating decision, the RO granted service connection for status post right mandibular body fracture and alopecia and assigned noncompensable disability ratings, respectively. The Veteran did not file a Notice of Disagreement (NOD) with respect to these issues. A statement of the case (SOC) was issued in August 2010, which listed the issues of service connection for alopecia and post right mandibular body fracture but did not discuss these issues in the body of the SOC. In the subsequent Form 9 submitted by the Veteran in September 2010, he indicated that he wanted to appeal all of the issues listed on the SOC issued in August 2010. Subsequently, in Supplemental Statements of the Case (SSOC) issued in May 2015 and February 2017, the RO listed the issues of increased ratings for alopecia and status post right mandibular body fracture and discussed these issues in the body of the SSOC by referencing the previous SOC dated in August 2010 and the SSOC dated in May 2015. However, the SSOC does not discuss these issues substantively but merely lists the procedural background. In May 2015, the RO certified the issues of increased ratings for alopecia and status post right mandibular body fracture to the Board. In October 2018, a VA examination was performed to assess the severity of the Veteran’s status post right mandibular body fracture and the RO increased the rating to 10 percent, effective August 21, 2017. Given the procedural history discussed above, the Board finds that these issues should be remanded in order for the RO to issue an appropriate Statement of the Case (SOC). If the Veteran wishes to file a substantive appeal, or Form 9, with regard to these issues, he should do so within the appropriate time limit after the SOC is issued. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from January 2018 to the present. 2. Send a letter to the Veteran and his representative requesting that he provide sufficient information, including medical provider’s name, location, and date(s) of treatment, and signed dated authorization(s), for all relevant updated private treatment relating to his lumbar spine, radiculopathy, and hypertension disabilities. All efforts to obtain records should be associated with the claims file and the Veteran and his representative should be provided notification if any of the listed records are unavailable pursuant to 38 C.F.R. § 3.159(e). 3. After completion of #1, #2, and #3, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected lumbar spine disability. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. Flare-ups have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being the most confident. The examiner should report and discuss the severity of the Veteran’s service-connected radiculopathy of the left lower and right lower extremities. The affected nerves should be identified and the impairment for radiculopathy should be characterized as mild, moderate, moderately severe, or severe incomplete paralysis or complete paralysis. If the examiner is unable to conduct any of 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. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected hypertension. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history. All necessary evaluations, studies, and tests, including blood pressure testing, must be accomplished and all findings reported in detail. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. (Continued on the next page)   5. Issue a Statement of the Case (SOC) with regard to the issues of entitlement to an initial compensable rating for status post right mandibular body fracture with temporomandibular joint dysfunction (TMJ) from October 1, 2008, and a rating in excess of 10 percent from August 21, 2017, and entitlement to an initial compensable rating for alopecia. If the Veteran submits a timely Form 9 in response to the Statement of the Case (SOC), return the matters to the Board. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel