Citation Nr: 18151608 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-34 627 DATE: November 20, 2018 REMANDED Entitlement to a rating in excess of 40 percent evaluation for lumbar spine degenerative joint disease (back disability) is remanded. Entitlement to a rating in excess of 20 percent evaluation for residuals of discectomy of C6/7 (cervical spine disability) is remanded. Entitlement to a rating in excess of 10 percent evaluation for left upper extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent evaluation for right upper extremity radiculopathy is remanded. Entitlement to a rating in excess of a 10 percent evaluation for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent evaluation for right lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from November 1967 to July 1988. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The AOJ granted service connection for the Veteran back disability and cervical spine disability in August 1988. At that time, he was assigned a noncompensable evaluation for his back disability and a 20 percent evaluation for his cervical spine disability. In August 2010, the Veteran filed an increase rating for his back disability and the AOJ assigned a 40 percent evaluation. The Veteran also filed for entitlement to service-connection for radiculopathy of his upper right, upper left, lower left, and lower right extremities. A 10 percent evaluation was assigned to each of his extremities. In 2014, the Veteran submitted an application for TDIU explaining that he could not work due to his service-connected disabilities. The Veteran received examinations for his back and cervical spine disabilities in September 2014. The examiner opined that any current cervical symptoms, exam findings or loss of motion that are worse than those of the January 2011 VA examination represent the aggravation of the service-connected cervical spine disability by the intercurrent motorcycle accident. The Veteran contends that his cervical spine disability has worsened. The Board finds that a new examination is needed so that the examiner can explain why all current symptoms that are worse than the January 2011 examination are due to the motorcycle accident and not a progression of his original cervical spine disability. The examiner should provide what signs and symptoms are due to the original cervical spine disability and which are due to the motorcycle injury. The Board notes that when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)). Radiculopathy was also evaluated during this October 2014 cervical spine examination. The examiner reported that the Veteran had bilateral carpel tunnel syndrome that was moderately severe. The examiner noted that an Electromyography (EMG) was conducted in 2010 prior to his motorcycle accident. The examiner found that the Veteran’s carpal tunnel syndrome (CTS) is unrelated to his cervical spine disability. Due to the complexity of the Veteran’s injuries and their relationship with a motorcycle accident post-service, the Veteran should receive another EMG to determine his current nerve disabilities and their severity. The October 2014 back examination report notes the following diagnoses: lumbosacral strain that was resolved, degenerative joint disease (DJD) of the lumbosacral spine that was service-connected in error, and lumbar spinal stenosis that is not service-connected. Unless or until the AOJ decides that DJD of the lumbosacral spine is not a service-connected disability, the examiner should provide what current signs and symptoms of the Veteran’s back are due to the Veteran’s DJD of the lumbosacral spine and which signs and symptoms are due to the lumbar spinal stenosis which is due to the accident that occurred after service in 2011. As noted above, when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)). The October 2014 examiner noted that she was unsure if the Veteran was generating full effort during range of motion testing. The Veteran reported that he was providing full effort but was uneasy about pushing himself too hard as that had cause pain after the examination in the past. If the Veteran was providing full effort, he should continue to do so during the next examination. If he was not providing full effort, he is reminded that the duty to assist is not a one-way street, and that the Veteran has a duty to cooperate and report for examination. 38 C.F.R. §§ 3.326, 3.327, 3.655 (b) (2009); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran reported that he has flare-ups but the examinations note no flare-ups of the cervical spine disability or the back disability. See September 2015 Veteran’s letter; see also October 2014 cervical spine and back DBQs. While the record contains contemporaneous VA examinations regarding the Veteran’s cervical spine and back disabilities, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. The examinations also do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements and pain on weight-bearing testing. Therefore, new examinations are warranted for the Veteran’s back and cervical spine disabilities. In a letter received in March 2016, the Veteran reported that VA schedules him for Compensation and Pension examinations each year to evaluate his back and cervical spine disabilities. The Veteran’s VA treatment records since November 2014 have not been associated with the claims file and could include Compensation and Pension examinations which would be relevant to his current appeal. VA records should be obtained and associated with the claims file. The Veteran has suggested that he is not interested in receiving a higher evaluation for his back and cervical spine, but in other statements he refers to an appeal pending for his back and cervical spine. As the Veteran has submitted an application for TDIU, the AOJ provided examinations, in part, to determine the impact of the Veteran’s disabilities on his ability to work. If the Veteran wishes to withdraw any claims for increase for his back or cervical spine disabilities, he may do so at any time, but the examinations requested in this remand will continue to be used in evaluating his claim for TDIU. As for the TDIU claim, the Veteran noted that he was somewhat capable of being employed in his field up until a few year ago. See August 2014 Veteran’s statement. Although the Veteran has reported that he had not worked since 2001, the examiner should provide the date of when he was no longer able to work. Further development and adjudication of the Veteran’s claim for increase may provide evidence in support of his claim for a TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2014 to the Present. All records/responses received must be associated with the electronic claims file. 2. Ask the Veteran to provide a statement providing the date of when he was no longer able to work. Although he reported that he last worked in 2001, he reported that he could no longer work a few years prior to a 2014 letter. 3. Schedule the Veteran for an examination of the current severity of his cervical spine disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his cervical spine disability alone and discuss the effect of the Veteran’s cervical spine disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should provide what signs and symptoms are attributable due to the original service-connected cervical spine disability and which are due to the motorcycle injury. The Board notes that when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)). 4. Schedule the Veteran for an examination of the current severity of his back disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his back disability alone and discuss the effect of the Veteran’s back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Unless or until the AOJ decides that DJD of the lumbosacral spine is not a service-connected disability, the examiner should provide what signs and symptoms of the Veteran’s back are due to the Veteran’s DJD of the lumbosacral spine and which signs and symptoms are attributable to the lumbar spinal stenosis which is due to the accident that occurred after service in 2011. As noted above, when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected nerve disabilities in the upper and lower extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to nerve disabilities in the upper and lower extremities alone and discuss the effect of the Veteran’s nerve disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Please provide the Veteran with an EMG. Provide what signs and symptoms of the Veteran’s nerve disabilities that are attributable to the original nerve disabilities and which signs and symptoms are due to the 2011 motorcycle accident. As noted above, when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)). (Continued on the next page)   6. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel