Citation Nr: 18149442 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-03 738A DATE: November 9, 2018 REMANDED The claim of entitlement to a rating greater than 20 percent for invertebral disc syndrome (IVDS) with degenerative arthritis of the lumbar spine (previously rated as lumbosacral strain) is remanded. The claim of entitlement to a rating greater than 20 percent for radiculopathy of the right lower extremity associated with IVDS with degenerative arthritis of the lumbar spine is remanded. The claim of entitlement to a rating greater than 10 percent for femoral nerve radiculopathy of the left lower extremity associated with IVDS with degenerative arthritis of the lumbar spine is remanded. The claim of entitlement to a rating greater than 10 percent for tendonitis of the right wrist is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected lumbar spine (with associated right and left lower radiculopathy) and right wrist disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1995 to December 1998. This appeal to the Board of Veterans’ Appeals (Board) arose from a March 2014 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, recharacterized the Veteran’s service-connected lumbar spine disability as IVDS with degenerative arthritis and granted an increased, 20 percent rating for the disability; continued a 10 percent rating for right wrist tendonitis; and awarded a separate 20 percent rating for right lower extremity radiculopathy associated with IVDS with degenerative arthritis of the lumbar spine, effective March 27. 2013. In April 2014, the Veteran filed a notice of disagreement (NOD) with the assigned ratings. Thereafter, the Veteran’s claims file was transferred to the jurisdiction of the RO in Seattle, Washington. A statement of the case (SOC) was issued in January 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in February 2015. In January 2018, the Veteran had an informal conference with a decision review officer (DRO) at the R), during which he waived his right to a DRO hearing. The report of the conference has been associated with the claims file. In a March 2018 rating decision, the RO awarded a separate 10 percent rating for left lower extremity femoral nerve radiculopathy associated with IVDS with degenerative arthritis of the lumbar spine. Although the Veteran did not initiate an appeal as to that assigned rating, because the award of this separate rating arose from the matter of an increased rating for the lumbar spine already on appeal, the RO considered the matter of higher rating for associated left lower extremity radiculopathy as part of the current appeal involving evaluation of lumbar spine disability (previously, with associated radiculopathy of only of the right lower extremity). Accordingly, the Board has likewise characterized the appeal to encompass this matter. Additionally, in a March 2018 supplemental SOC (SSOC), despite denial of a TDIU in a December 2016 rating decision, the RO expanded the appeal to also encompass the matter of entitlement to a TDIU due to the disabilities for which increased ratings were being sought (consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009)). In that SSOC, the RO denied a TDIU, as well as ratings higher than those already assigned for IVDS with degenerative arthritis of the lumbar spine, radiculopathy of the right lower extremity, femoral nerve radiculopathy of the left lower extremity, and tendonitis of the right wrist. The Board had likewise char In May 2018, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the claims file. The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the claims on appeal is warranted. The Veteran was last afforded a VA examination for evaluation of his service-connected lumbar spine (and associated radiculopathies) and right wrist disabilities in March 2017 and August 2017, respectively. However, during the May 2018 Board hearing, the Veteran testified that these disabilities had worsened since that time. Given the possible worsening of these disabilities, the Board finds that the Veteran should be afforded a new VA examination to obtain information as to the current severity of the disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board also notes that, in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight bearing and non-weight bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Such testing must be accomplished in conjunction with the examination herein requested. Hence, on remand, the AOJ should arrange for the Veteran to undergo VA examinations for evaluation of his service-connected lumbar spine (and associated radiculopathy of the lower extremities) and right wrist disabilities, each by an appropriate clinician. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may well result in denial of his claim(s), to include the TDIU claim. See 38 C.F.R. § 3.655. Also as for the TDIU claim, the Board notes that, inasmuch as resolution of the increased rating claims may well have a bearing on the claim for a TDIU, the claims are inextricably intertwined and should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). As Board action on the claim for a TDIU would be premature, at this juncture, this matter is being remanded, as well. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file additional outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Puget Sound Health Care System (HCS), and that records from those facilities dated through August 2018 are associated with the file; however, more recent records may exist. Therefore, the AOJ should obtain from the Puget Sound VA HCS all pertinent, outstanding records of evaluation and/or treatment of the Veteran since August 2018, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. The AOJ’s adjudication of each higher rating claim should include consideration of whether “staged rating” of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. These matters are hereby REMANDED for the following action: 1. Obtain from the Puget Sound VA HCS all outstanding records of evaluation and/or treatment of the Veteran, dated since August 2018. Follow the procedures of 38 C.F.R. § 3.159 regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo VA examination for evaluation of his service-connected lumbar spine and right wrist disabilities, eacg by an appropriate clinician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated clinician(s), and each examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to each examiner prior to the completion of his or her report,) and all clinical findings should be reported in detail. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. Thoracolumbar spine examination – With respect to the thoracolumbar spine, the examiner should conduct range of motion testing (expressed in degrees) on both active motion and passive motion and in both weight bearing and nonweight bearing (as appropriate). 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 so state and explain why. On range of motion testing, the examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the thoracolumbar spine. If pain on motion is observed, the examiner should indicate the point at which motion limiting pain begins. In addition, if the examination is not conducted during a flare-up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the thoracolumbar spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran has any ankylosis of the thoracolumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. Additionally, the examiner should identify and comment on the existence, frequency, or extent of, as appropriate, any neurological manifestation(s) of the Veteran’s service-connected thoracolumbar spine disability, to include radiculopathy of the right lower extremity and femoral nerve radiculopathy of the left lower extremity. The examiner should provide an assessment of each such manifestation as mild, moderate, moderately severe, or severe. Further, considering all neurological and orthopedic findings, the examiner should render findings particularly responsive to the criteria for rating IVDS—specifically, comment as to the existence and frequency of any of the Veteran’s incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). If the Veteran has incapacitating episodes associated with his thoracolumbar spine disability, the examiner should specify whether, over the past 12 months, such episodes have had a total duration of (a) at least one week, but less than 2 weeks; (b) at least 2 weeks but less than 4 weeks; (c) at least 4 weeks but less than 6 weeks; or (d) at least 6 weeks. Right wrist examination – With respect to the right wrist, the examiner should conduct range of motion testing (expressed in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing (as appropriate). The same range of motion testing should also be accomplished for the left wrist (for comparison purposes). 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 so state and explain why. On range of motion testing, the examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. associated with the right wrist. If pain on motion is observed, the examiner should indicate the point at which motion limiting pain begins. In addition, if the examination is not conducted during a flare-up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right wrist due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran has any ankylosis of the right wrist; and, if so, whether it is favorable or unfavorable and the angle at which the wrist is held. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include, with respect to each higher rating claim, consideration of whether “staged rating” of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel