Citation Nr: 18151552 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 11-15 580 DATE: November 20, 2018 REMANDED Entitlement to an initial disability rating in excess of 20 percent for thoracic spine scoliosis and lumbar spine lordosis is remanded. Entitlement to a rating in excess of 30 percent for a cervical spine disability is remanded. Entitlement to a rating in excess of 40 percent for a right upper extremity radiculopathy disability is remanded. Entitlement to a rating in excess of 30 percent for a left upper extremity radiculopathy disability is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had Army National Guard and Reserve service that included a period of active duty for training (ACDUTRA) from July through December of 1987. He also had active duty service from May 1988 through May 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2010 and September 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Testimony from the Veteran and his spouse was received during a September 2012 Board hearing. A transcript of that testimony is associated with the record. The Board remanded the issues of entitlement to an initial disability rating in excess of 20 percent for thoracic spine scoliosis and lumbar spine lordosis and entitlement to a TDIU in May 2014. In September 2017, the Board, in part, denied the Veteran’s claim for entitlement to an initial disability rating in excess of 20 percent for thoracic spine scoliosis and lumbar spine lordosis. The Veteran subsequently appealed the September 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Order, the Court granted the parties’ Amended Joint Motion for Remand (AJMR), vacating the Board’s September 2017 decision as it pertained to the denial of the Veteran’s claim for entitlement to an initial disability rating in excess of 20 percent for thoracic spine scoliosis and lumbar spine lordosis and remanded the appeal to the Board for readjudication consistent with the AJMR. The Board finds that more development is necessary prior to final adjudication of the claims on appeal. In a September 2017 decision, the RO denied a rating in excess of 30 percent for a cervical spine disability, denied a rating in excess of 40 percent for a right upper extremity radiculopathy disability, denied a rating in excess of 30 percent for a left upper extremity radiculopathy disability, denied a rating in excess of 10 percent for a right knee disability and denied a rating in excess of 10 percent for a left knee disability. In May 2018, the Veteran filed a notice of disagreement (NOD) as to the September 2017 rating decision. As a result, while the Veteran expressed disagreement with the September 2017 rating decision, it appears that no subsequent statement of the case was ever issued. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that the issues of entitlement to a rating in excess of 30 percent for a cervical spine disability, entitlement to a rating in excess of 40 percent for a right upper extremity radiculopathy disability, entitlement to a rating in excess of 30 percent for a left upper extremity radiculopathy disability, entitlement to a rating in excess of 10 percent for a right knee disability and entitlement to a rating in excess of 10 percent for a left knee disability remain pending in appellate status and require further action. See 38 U.S.C. § 7105; 38 C.F.R. § 19.26. In this regard, it is noteworthy that these claims are not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal. The Board’s actions regarding these issues are taken to fulfill the requirements of the Court in Manlincon. Regarding the Veteran’s claim for an initial disability rating in excess of 20 percent for thoracic spine scoliosis and lumbar spine lordosis, as noted above, the September 2017 Board decision denied entitlement to a rating in excess of 20 percent based on the findings of an April 2016 VA examination. However, the parties in the May 2018 AJMR determined that the April 2016 VA examination was inadequate. The AJMR noted that while the April 2016 found that pain was noted on all ranges of motion of the spine, at no point did the examiner indicate in the Veteran’s range of motion where the Veteran experienced pain so as to indicate to what extent pain caused additional functional loss. See Mitchell v. Shinseki, 25 Vet. App. 44 (2011). The parties also noted in the AJMR that the April 2016 VA examiner indicated that the Veteran was not being examined immediately after repetitive use over time and noted that he was unable to say without resorting to mere speculation whether the Veteran’s pain, weakness, fatigability or incoordination significantly limited his functional ability with repeated use over time. However, the AJMR noted that the examiner’s discussion contained no indication that he attempted to ascertain adequate information relating to this question, the examiner did not attempt to estimate the Veteran’s functional loss after repetitive use and the examiner offered no explanation as to why he was unable to provide such an estimation. As a result, the AJMR found that the April 2016 was inadequate as an examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or repeated use over time will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As a result, the Board finds that a new VA examination is needed to determine the current severity of the Veteran’s service-connected thoracic spine scoliosis and lumbar spine lordosis disability to include opinions on whether the Veteran has functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness and whether additional functional loss results from symptoms such as pain. See, DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Regarding the Veteran’s claimed bilateral hearing loss disability, per the September 2017 Board remand instructions, the Veteran underwent a VA audiological examination in December 2017. However, the examiner indicated that he could not determine a medical opinion regarding the etiology of the Veteran’s bilateral hearing loss without resorting to mere speculation as pure tone speech and audiometry testing was not completed as the Veteran indicated that he had an ear infection of his left ear on the date of the examination. In this regard, the Board acknowledges that the Court has held that generally, where an examiner is unable to give an opinion without resorting to mere speculation, there is no opinion offered. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds that a remand is necessary to provide the Veteran with a new VA examination relating to his claim for service connection for a bilateral hearing loss disability in order to provide an etiology opinion. Additionally, the Board notes that further development and adjudication of the Veteran’s claims for increased ratings and service connection may provide evidence in support of his claim for TDIU. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. The RO should issue a statement of the case to the Veteran addressing the matters of entitlement to a rating in excess of 30 percent for a cervical spine disability, entitlement to a rating in excess of 40 percent for a right upper extremity radiculopathy disability, entitlement to a rating in excess of 30 percent for a left upper extremity radiculopathy disability, entitlement to a rating in excess of 10 percent for a right knee disability and entitlement to a rating in excess of 10 percent for a left knee disability, including citation to all relevant law and regulation pertinent to the claims. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, these issues are to be returned to the Board for further appellate consideration, if otherwise in order. 3. The Veteran should be afforded a VA examination to determine the severity of his service-connected lumbar spine disability. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination report should reflect review of the record. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran’s lumbar spine disability. The examiner should also 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 lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; (4) non-weight bearing; (5) active motion; (6) passive motion; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the functional limitations. Regarding the description of functional limitation due to pain, weakness, fatigability, or incoordination during flare-ups, the examiner shall inquire as to periods of flare-up, and note the frequency, severity, and duration of any such flare-ups from the Veteran. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. 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. The examiner should also indicate whether the Veteran suffers from intervertebral disc syndrome, and if so, whether this condition has resulted in incapacitating episodes. The examiner should also provide an opinion concerning the impact of the Veteran’s service-connected lumbar spine disability on his ability to work. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his current bilateral hearing loss disability. The examiner should opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s current hearing loss disability is related to active service. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be   afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel