Citation Nr: 18150841 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 96-45 633 DATE: November 16, 2018 ORDER Entitlement to an increased disability rating for right shoulder bursitis since September 27, 2002, currently rated as 20 percent disabling, is dismissed. Entitlement to an increased disability rating for left shoulder arthritis since September 27, 2002, currently rated zero percent (noncompensably) disabling prior to July 3, 2007 and as 20 percent disabling since then, is dismissed. Entitlement to an increased disability rating for left elbow arthritis since September 27, 2002, currently rated as 10 percent disabling, is dismissed. Entitlement to an increased disability rating for right elbow arthritis since September 27, 2002, currently rated as 10 percent disabling, is dismissed. Entitlement to an increased disability rating for residuals of a right knee injury since September 27, 2002, currently rated as 10 percent disabling, is dismissed. Entitlement to an increased disability rating for left knee arthritis since September 27, 2002, currently rated as zero percent (noncompensably) disabling prior to July 2, 2007 and as 10 percent disabling since then, is dismissed. Entitlement to an increased disability rating for left hip arthritis since September 27, 2002, currently rated as 10 percent disabling, is dismissed. Entitlement to an increased disability rating for right hip arthritis since September 27, 2002, currently rated as 10 percent disabling, is dismissed. Entitlement to an increased disability rating for left ankle arthritis since September 27, 2002, currently rated as 10 percent disabling prior to July 2, 2007 and as 20 percent disabling since July 2, 2007, is dismissed. Entitlement to an increased disability rating for right ankle arthritis since September 27, 2002, currently rated as 10 percent disabling prior to July 2, 2007 and as 20 percent disabling since July 2, 2007, is dismissed, Entitlement to a disability rating in excess of 10 percent for arthritis of the bilateral hands since September 27, 2002, currently rated as 10 percent disabling, is dismissed. Entitlement to a disability rating in excess of 10 percent for arthritis of the left wrist since September 27, 2002 is dismissed. REMANDED Entitlement to an increased disability rating for right shoulder bursitis prior to September 27, 2002, currently rated as 20 percent disabling, is remanded. Entitlement to an increased disability rating for left shoulder arthritis prior to September 27, 2002, currently rated zero percent (noncompensably) disabling, is remanded. Entitlement to an increased disability rating for left elbow arthritis prior to September 27, 2002, currently rated as 10 percent disabling, is remanded. Entitlement to an increased disability rating for right elbow arthritis prior to September 27, 2002, currently rated as 10 percent disabling, is remanded. Entitlement to an increased disability rating for residuals of a right knee injury prior to September 27, 2002, currently rated as 10 percent disabling, is remanded. Entitlement to an increased disability rating for left knee arthritis prior to September 27, 2002, currently rated as zero percent (noncompensably) disabling, is remanded. Entitlement to an increased disability rating for left hip arthritis prior to September 27, 2002, currently rated as 10 percent disabling, is remanded. Entitlement to an increased disability rating for right hip arthritis prior to September 27, 2002, currently rated as 10 percent disabling, is remanded. Entitlement to an increased disability rating for left ankle arthritis prior to September 27, 2002, currently rated as 10 percent disabling, is remanded. Entitlement to an increased disability rating for right ankle arthritis since September 27, 2002, currently rated as 10 percent disabling, is remanded. Entitlement to a disability rating in excess of 10 percent for traumatic arthritis of the hands prior to September 27, 2002 is remanded. Entitlement to an increased disability rating for arthritis of the cervical spine, currently rated as 40 disabling prior to September 22, 2002 and as 20 percent disabling since then, is remanded. Entitlement to an increased disability rating for arthritis of the lumbosacral spine, currently rated as 20 percent disabling, is remanded. Entitlement to an increased disability rating for radiculopathy of the right upper extremity, currently rated as 20 percent disabling between September 23, 2002 and December 19, 2017 and as 40 percent disabling since December 19, 2017, is remanded. Entitlement to an increased disability rating for radiculopathy of the right upper extremity, currently rated as 20 percent disabling prior to December 19, 2017 and as 40 percent disabling since then, is remanded. FINDING OF FACT In a written statement through his attorney, received on August 31, 2018, the Veteran indicated his intention to withdrawal his appeal of the denial of increased disability ratings for the period after September 27, 2002 for service-connected disabilities of the bilateral shoulders, bilateral hands, bilateral elbows, bilateral hips, bilateral knees, bilateral ankles, and left wrist. CONCLUSION OF LAW For the issues of increased disability ratings for service-connected disabilities of the bilateral shoulders, bilateral hands, bilateral elbows, bilateral hips, bilateral knees, bilateral ankles, and left wrist, all for the period after September 27, 2002, the criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to July 1969. This case has a long procedural history. The issue of an increased rating for a service-connected disability of the cervical spine comes to the Board from a rating decision of the Agency of Original Jurisdiction (AOJ) issued in February 1996. The Board denied an increased rating for the cervical spine in January 1999, but this decision was vacated after further review before the United States Court of Appeals for Veterans Claims (Court). The Court vacated the January 1999 decision after granting a joint motion for remand (JMR) filed by counsel for both parties. In the JMR, the parties agreed that the AOJ failed to adjudicate claims for service connection for arthritis in all joints. After further proceedings, the AOJ granted service-connected compensation for arthritis of the cervical spine and also granted compensation for eighteen additional disabilities. The Veteran appealed the effective dates and disability ratings assigned to these disabilities. In December 2008, the Board issued a decision denying most, but not all, of the Veteran’s requests for higher disability ratings and earlier effective dates. The Board also denied a claim for service connection “for residuals of herbicide exposure . . .” The issues of increased ratings for the lumbar spine, right wrist, bilateral hands, and right knee were remanded to the AOJ for further development. With respect to the claims denied by the Board, the Veteran once again appealed to the Court. In May 2010, the parties filed a second JMR, which was granted by the Court. By granting the JMR, the Court vacated the December 2008 Board decision to the extent it had denied earlier effective date and increased ratings. The Veteran abandoned his appeal of the denial of compensation for residuals of herbicide exposure. Citing DeLuca v. Brown, 8 Vet. App. 202 (1995), the JMR concluded that, when it denied increased ratings for arthritis of the relevant joints, the Board erred in relying on an inadequate series of VA examination reports, dated June 2002 and July 2007. Pursuant to the May 2010 JMR, the appeal returned ot the Board. In December 2010, the Board issued a new decision denying the thirteen remaining earlier effective date claims. This time, the Veteran did not appeal these rulings to the Court and, therefore, the requests for earlier effective dates are no longer part of this appeal. Pursuant to the JMR, the Board remanded the increased rating issues to the AOJ with instructions to arrange new examinations. The Board remanded the increased rating claims again in January 2013. In its remand instructions, the Board ordered the AOJ to request updated VA treatment records. The Board also acknowledged that the rating criteria applicable to the cervical and lumbar spine increased rating claims had changed during the relevant appeal period. The AOJ also ordered new examinations and requested that the examiner provide findings responding to both the new and revised, rating criteria. For the other increased rating claims, the Board ordered new examinations to help ascertain the current severity of each disability. For all disabilities, the examiner was instructed: “If there was a material change in the severity of the Veteran’s symptoms . . . at any time during the pendency of the appeal, the examiner must attempt to identify the date of this change and provide a separate opinion as to the severity of the disability before and after the change.” The January 2013 remand addressed all claims which had been part of the May 2010 JMR and the December 2010 Board remand as well as the increased rating claims for arthritis of the hands and the lumbar spine. This case was most recently before the Board in August 2017. When issuing yet another remand, the Board explained that further remand was needed because the series of VA examination reports received in January 2016 were inadequate because the range of motion test results for the relevant joints did not comply with Correia v. McDonald, 28 Vet. App. 158, 170 (2016). On remand, the AOJ obtained a new series of VA examination reports in December 2017, issued a supplemental statement of the case continuing the denial of the increased rating claims in March 2018, and returned the case to the Board. At the request of the Veteran’s attorney, in June 2018 the Board granted an extension of time for the Veteran to submit new evidence or argument in support of the claims on appeal. The Veteran filed another extension request, received on August 12, 2018. In this request, the Veteran asked for an additional 18 days or “until Friday, August 31, 2018” to submit new information. Although the Board had not ruled on the August 2018 request, the Veteran’s attorney submitted a new brief, together with a new written statement from the Veteran, on August 31, 2018. The Board has waited until after the most recent period requested by the Veteran to address the issues in this case. As the initial time desired in the extension request has passed, the reason for the extension requested (a period of time to submit additional evidence) has been fulfilled, and neither the Veteran nor his attorney has indicated that any further evidence or argument is to be obtained and/or submitted, the Board will deny any additional extension of time and will proceed with review of the appeal. Increased Ratings for Arthritis of the Joints before September 27, 2002 The Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In the brief submitted by his attorney on August 31, 2018, the Veteran acknowledged that he had been granted a total 100 percent combined disability rating for the period since September 27, 2002. He indicated his desire to withdraw his appeal with respect to “the ratings assigned on or after 9/27/02 except that he requests administrative review of his spine ratings, to include residuals of secondary conditions, at all times from the date of filing through the present. The veteran requests the Board’s review of all of his claims for higher initial ratings from the effective date of each claim through 9/27/02.” The attorney submitted this brief together with a written statement signed by the Veteran, also dated August 2018. In this statement, the Veteran agreed to “withdraw my appeals for higher ratings for the period after 9/27/02 except I request that the Board review the ratings for my spine claims at all times since filed. I request Board review of the ratings for all other disabilities now in appellate status for the period inclusive of date of filing through 9/27/02.” With respect to the Veteran’s claims for increased initial ratings service-connected disabilities of the bilateral shoulders, bilateral hands, bilateral elbows, bilateral hips, bilateral knees, bilateral ankles, and left wrist, all for the period after September 27, 2002, there are no longer any alleged errors of fact or law for appellate consideration. See 38 C.F.R. § 20.204(b). The Board no longer has jurisdiction to review the Veteran’s appeal of these issues and they are therefore dismissed. The Board will not dismiss the appeals seeking higher ratings for cervical radiculopathy of the right and left upper extremities, because, according to the relevant examination reports, these disabilities are the secondary results of the service-connected cervical spine disability and the Veteran’s attorney has asked that the Board continue to review the claims for both spinal segments, “to include residuals of secondary conditions . . . at all times from the date of filing through the present.” REASONS FOR REMAND New Examinations for the Spine It is necessary to remand the lumbar spine increased rating claim because, contrary to the Board’s earlier remand instructions, the AOJ did not obtain a post-remand examination report for the lumbar spine. The examiner indicated that the Veteran declined to be examined for any disabilities other than the cervical spine, hands, and knees. But the brief of the Veteran’s attorney disputes this account. A new examination for the cervical spine is also necessary in part because the December 2017 examiner’s report failed to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held that adequate range of motion test results include evaluating range of motion “for pain on both active and passive motion and in weight bearing and nonweight-bearing.” Id. at 170. The December 2017 report includes one initial set of range of motion test results and a note indicating that there was no further loss of range of motion after repetitive use. And the examiner apparently attempted to comply with 38 C.F.R. § 4.59 by indicating that the Veteran did not experience pain with weight-bearing. But the examiner did not provide separate sets of range of motion tests results using each of the testing methods described in the regulation. Several parts of the Court’s opinion in Correia suggest that it is not enough merely to indicate whether or not pain was present during a test. In the part of the decision which considered whether § 4.59 was ambiguous, the Court explained the role of the regulation in the context of other regulations which apply generally to disabilities of the musculoskeletal system. “In that context, then, we read the final sentence of § 4.59 as explaining the kinds of test results that ‘should’ be obtained to permit an adjudicator to assess the effect of painful motion – range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances.” Correia, 28 Vet. App. at 165. It is difficult to see how test results which merely indicate the presence or absence of pain would permit an adjudicator to assess the effect of pain on range of motion. To do so effectively, it would be useful for the adjudicator to have the full results of each range of motion test – i.e., the range of motion, in degrees, of the relevant joint using each of the testing methods identified in the regulation. The Correia opinion continues with analysis of the interpretation of § 4.59. This part of the Court’s analysis indicates that the regulation should be read together with 38 C.F.R. §§ 4.40 and 4.45. The Court explained that, “[§ 4.40] states that it ‘is essential’ that an examination on which a disability rating is based ‘adequately portray the anatomical damage and the functional loss’ that occurs as a result of those elements. Section 4.45 explains that ‘the factors of [joint] disability reside in reductions of their normal excursion of movements in different planes.” Correia, 28 Vet. App. at 169 (internal short form citations and explanatory parenthetical omitted). “Neither of those regulations, however, explains how that information should be obtained, except that § 4.40 refers to ‘an examination,’ but the Secretary has answered this question in § 4.59.” Id. If § 4.59 was intended to accomplish the purposes of § 4.45 – one of which is to assess “reductions in [the] normal excursion of movements [of the joint] in different planes” – the most reasonable reading of § 4.59 requires the examiner to provide detailed range of motion test results, not merely an indication of whether or not pain was present. The final sentence the Court’s regulatory interpretation analysis supports this conclusion: “Consequently, we are left with the inescapable conclusion that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of §4.59.” Id. at 169-70. For these reasons, the Board must remand the cervical spine increased rating claim for a new examination. When the Board remands an appeal, the claimant obtains a right to compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the August 2018 brief, the Veteran’s attorney criticizes the December 2017 examination reports for neglecting to address the old and revised rating criteria for the Veteran’s service-connected spine disabilities. On remand, the AOJ should obtain a retrospective medical opinion from the examiner addressing the old and revised rating criteria throughout the relevant appeal period. Retrospective Medical Opinion for all Claims With respect to both the spine claims, for which a new examination is needed, and for the many increased rating claims for the period prior to September 27, 2002, the Board’s January 2013 remand orders required the examiner to indicate whether or not a material change had occurred in the severity of the Veteran’s symptoms. The AOJ obtained a series of examination reports in January 2016. For each disability, the examiner indicated that, after reviewing service treatment records and post-service VA records, there had been no material change in the severity of the Veteran’s symptoms for the relevant disabilities. There are several problems with these opinions. First, the examiner who provided them could not have considered the interpretations of 38 C.F.R. §§ 4.40, 4.45 and 4.59 provided in Correia and Sharp. Secondly, for at least some of the relevant disabilities, VA has already determined that there was a material change – for example, both ankles have been assigned a rating of 10 percent prior to July 2007 and a 20 percent rating since then. For the left shoulder the AOJ has assigned a noncompensable rating prior to July 2007 and a 20 percent rating since then, and the cervical spine has been assigned a 40 percent rating prior to September 2002 and a 20 percent rating since then. There is also medical evidence which is in tension with the examiner’s conclusion that there have been no material changes in the severity of the relevant conditions. VA treatment records, dated April 1999, indicate the use of ibuprofen during flare-ups manifesting in pain in the Veteran’s neck, shoulder, hip, knee and ankle. The notes did not indicate how often the Veteran experienced flare-ups or how long flare-ups lasted when they occurred. But according to private medical records, dated June 2002, the Veteran denied flare-ups with respect to his elbows, hips, left shoulder, and lumbar spine. He mentioned periods of pain, weakness, and stiffness in his ankles. Citing some of these reasons, the August 2018 brief from the Veteran’s attorney suggests that the Board should request an independent medical opinion on the severity of the Veteran’s claims over time. The Board agrees that, under the circumstances of this case, a retrospective medical opinion is needed. But an independent medical opinion would not give the examiner the opportunity to interview the Veteran about the severity of his symptoms – including the severity, frequency, and duration of flare-ups – throughout the appeal period. It is clear from the Court’s recent opinion in Sharp v. Shulkin, 29 Vet. App. 26 (2017) that the duty to assist requires VA examiners to elicit information of this kind from the Veteran. On remand, the AOJ should obtain a retrospective medical opinion from a VA examiner or examiners which address the range of motion and functional impairment in all of the relevant joints during the relevant appeal period. The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder copies of all records of the Veteran’s VA treatment since November 2017. 2. Schedule a VA examination to ascertain the current severity of the Veteran’s service-connected disability of the cervical and lumbar spine, as well as associated neurological abnormalities, including radiculopathy of the upper extremities. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the cervical lumbar spine disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in both spinal segments and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33, 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. If the Veteran is not capable of range of motion testing due to pain, the examiner should ask him to describe and/or demonstrate the extent of motion loss in terms of degrees during periods when he is not experiencing a flare-up. WHETHER OR NOT THE VETERAN IS EXPERIENCING A FLARE-UP DURING THE EXAMINATION, THE EXAMINER SHOULD ASK HIM HOW FREQUENTLY HE EXPERIENCES FLARE-UPS AND HOW LONG FLARE-UPS LAST WHEN THEY OCCUR. THE EXAMINER SHOULD RECORD THE VETERAN'S ANSWERS TO THESE QUESTIONS IN HIS OR HER REPORT. 3. Provide the Veteran’s claims file to a qualified person or persons for the preparation of a retrospective medical opinion concerning the severity of the Veteran’s service-connected disabilities of the bilateral shoulders, bilateral hands, bilateral elbows, bilateral hips, bilateral knees, bilateral ankles, and left wrist during the period before September 27, 2002 and concerning the severity of the Veteran’s service-connected disabilities of the lumbar and cervical spine, together with associated radiculopathy of the bilateral extremities bilaterally. The Veteran should be interviewed by a VA examiner or examiners before the preparation of the retrospective opinions. Prior to the interview(s), the Veteran should receive notice of the date, time and place of the interview and the AOJ should advise him that he should do everything he reasonably can to refresh his recollection concerning the severity of his joint arthritis disabilities prior to September 27, 2002 and the severity of his spine and related disabilities throughout the appeal period. In the interview, the examiner should ask the Veteran about the severity, frequency, and duration of flare-ups for each of the relevant disabilities over time. After interviewing the Veteran and reviewing the claims file, the examiner(s) should provide a retrospective medical opinion concerning the severity of each of the relevant disabilities over time. For each disability, the examiner should address functional impairment on repeated use or during-flare-ups in terms of additional degrees of range of motion loss. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Nye, Associate Counsel