Citation Nr: 18152868 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 10-08 643 DATE: November 27, 2018 ORDER Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected right shoulder disorder is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s cervical spine disorders to include degenerative joint disease, degenerative disc disease and cervical spine radiculopathy C5-6 and C6-7 were aggravated beyond their natural progression by his service-connected right shoulder disorder. CONCLUSION OF LAW The criteria for service connection for a cervical spine disorder diagnosed as degenerative joint disease, degenerative disc disease and cervical spine radiculopathy C5-6 and C6-7 are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from April 1987 to July 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2008 and December 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case has been summarized in previous Board decisions and remands. Most recently, in December 2016, the Board denied the claims on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2018, the Court issued a Memorandum Decision in which it vacated and remanded the Board’s decision. The Veteran submitted additional evidence in November 2018 along with a waiver of RO consideration. 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected right shoulder disorder. The Veteran asserts that his cervical spine disorder is related to his military service, or in the alternative, was caused or aggravated by his service-connected right shoulder disorder. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The evidence of record clearly establishes that the Veteran has a current disability. On VA examinations in May 2008, January 2014, and December 2015, the Veteran was diagnosed with degenerative disc disease of the cervical spine. The January 2014 VA examination shows the Veteran was also diagnosed with degenerative joint disease and cervical radiculopathy C5-6 and C6-7. VA and private treatment records also show similar diagnoses. As noted in the Court’s February 2018 Memorandum Decision, none of the current VA examination reports contain opinions that could be construed as addressing secondary aggravation. See El-Amin v. Shinseki, 26Vet.App. 136, 140 (2013) (explaining that a medical opinion that fails to address whether a service-connected disability aggravated the claimed disability is inadequate to inform the Board on the issue of secondary service connection). The Veteran submitted a copy of a private medical evaluation conducted in November 2018 by Dr. E.P. In rendering his assessment, Dr. E.P. conducted an interview of the Veteran and reviewed his medical records and VA claims file. Dr. E.P. opined that it is at least as likely as not that the Veteran’s cervical spine disorders (degenerative disc disease, degenerative joint disease, and cervical spine radiculopathy) were aggravated beyond the course of their natural progression by his service-connected right shoulder disorder. Dr. E.P. explained that the subsequent change in body mechanics after the Veteran changed employment in 2006 and increased use of the left shoulder due to contralateral dysfunction resulted in increased strain on his already compromised cervical spine. Dr. E.P. further explained that this in turn led to worsening of cervical spine degeneration, ultimately manifesting as multilevel cervical spine structural abnormalities and radiculopathy. Dr. E.P. reasoned that while genetic factors and aging can predispose a person to degenerative disc disease and arthritis, he would not have expected the Veteran to have such severe disease without the additional underlying and pre-existing right shoulder and cervical spine conditions. The Board finds this opinion, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, is highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent evidence to the contrary. The Board observes that Dr. E.P.’s opinion did not provide or establish a baseline level of disability for the cervical spine disorder before it was worsened by the service-connected right shoulder disability. However, the Board notes that although 38 C.F.R. § 3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO’s determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. In sum, there is competent evidence of a current cervical spine disorder and competent and highly probative evidence showing the Veteran’s cervical spine disorders were aggravated by his service-connected right shoulder disorder. As such, service connection for a cervical spine degenerative disc disease, degenerative joint disease, and C5-6, C7 radiculopathy is warranted. 38 C.F.R. § 3.310.   REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran contends he is unemployable because of his cervical spine and right shoulder disorders. The above decision awarded service connection for cervical spine degenerative disc disease, degenerative joint disease, and C5-6, C7 radiculopathy. As the ratings assigned by the RO in implementing the above decision will affect whether the Veteran meets the schedular criteria for TDIU, these issues are intertwined and entitlement to TDIU is deferred. Moreover, in cases where the schedular criteria for TDIU are not met, an extraschedular rating is for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321, 4.16 (b) (2017). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). There is evidence of unemployability in this case. In his November 2018 opinion, Dr. E.P. opined that the Veteran is unable to secure and follow substantially gainful employment as a result of his orthopedic (cervical spine and right shoulder) disabilities and has limited use of his upper extremities secondary to the cervical radiculopathy. And as the Court noted in the February 2018 Memorandum Decision, there appears to be an inconsistency in the December 2015 VA examiner's opinion regarding the Veteran’s ability to obtain and maintain gainful employment. Specifically, although the examiner noted that the Veteran previously worked as a heavy equipment operator (and reported limitations in those job duties due to neck and right shoulder pain), the examiner opined that his right shoulder and cervical disabilities did not affect his ability to work. The examiner appeared to base that unfavorable opinion on the fact that the Veteran last worked as a lab technician in 2005; however, additional evidence of record reflects that the Veteran’s last job was as a heavy equipment operator. Considering the current record, the RO should undertake any additional, appropriate development necessary on remand to adjudicate this issue. Finally, there may be outstanding, relevant private treatment records. The Veteran submitted a VA Form 21-8940 in November 2018 indicating that he is receiving ongoing treatment for his right shoulder disorder from Dr. B.D. at Memorial Pain Management. These records have not been associated with the Veteran’s claims file. As these records may contain information regarding the severity of the Veteran’s service-connected right shoulder disorder and its impact on his occupational functioning, a remand is required to allow VA to obtain authorization and request these records. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2015 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. B.D. at Memorial Pain Management. Make two requests for the authorized records from Memorial Pain Management, unless it is clear after the first request that a second request would be futile. (Continued on the next page)   3. Conduct any other development warranted as a result of this remand. If TDIU is not granted, then refer the case to the Director of the Compensation and consideration of TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel