Citation Nr: 18153634 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 96-44 184 DATE: November 29, 2018 REMANDED Entitlement to service connection for headaches is remanded. Entitlement to an increased rating for a right shoulder disability, rated 0 percent from August 23, 1995, to August 29, 2005, and rated 20 percent as of August 29, 2005, is remanded. Entitlement to an increased rating for a low back disability, rated 10 percent from August 23, 1995, to July 2, 1997, and rated 20 percent from July 2, 1997, to September 15, 2006, is remanded. Entitlement to an initial rating higher than 0 percent for residuals of a tonsillectomy is remanded. (The issue of entitlement to an earlier effective date for a total disability rating based on individual unemployability due to service-connected disabilities is addressed in a separate decision, as the Veteran had a hearing concerning that issue with a different Veterans Law Judge.) REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. VA’s duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim. For records not in the custody of a Federal department or agency, reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile. However, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159. The Board notes that records show the Veteran is receiving federal employment disability benefits, but that the records associated with that claim have not been obtained from the Office of Personnel Management. In the prior September 2014 remand, the Board requested that the pertinent records from the Office of Personnel Management related to the Veteran’s federal employment disability claim, to include medical and examination reports of the claimed injuries, be obtained and associated with the claims file. Those records have yet to be associated with the claims file. Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Remand is required to obtain the Veteran’s pertinent records concerning his federal employment disability claim. 2. Entitlement to an increased rating for a right shoulder is remanded. In March 2017, the Veteran perfected an appeal of this issue. Along with submitting VA Form 9, the Veteran also submitted additional lay evidence regarding the history of right shoulder symptoms. On the VA Form 9, the Veteran’s attorney specifically requested that the Agency of Original Jurisdiction (AOJ) initially consider the newly submitted evidence before certifying the appeal to the Board. Notably, since the issuance of the February 2017 Statement of the Case, the issue of entitlement to a higher rating for a right shoulder disability has not been readjudicated by the AOJ. In a December 2017 brief, the Veteran’s attorney specifically requested initial consideration of the newly submitted lay evidence by the AOJ. Evidence must be returned to the Agency of Original Jurisdiction for initial consideration, unless the appellant waives his right to have the evidence initially considered by the Agency of Original Jurisdiction. 38 C.F.R. § 20.1304. As the Veteran has not waived that right, in accordance with his attorney’s request, remand is required for the Agency of Original Jurisdiction to initially consider the newly submitted evidence. 3. Entitlement to an increased rating for a low back disability is remanded. In a February 2013 memorandum decision, the Court set aside the Board’s decision in September 2011 denying a rating in excess of 10 percent for a low back disability from August 23, 1995, to July 2, 1997, and in excess of 20 percent from July 2, 1997, to September 15, 2006. The Court specifically questioned the review of a September 1995 private examination report noting a loss of 73 percent of normal extension of the lumbar spine and whether it had been taken into account in the determination of only “mild” limitation of motion of the lumbar spine. It was additionally noted that ratings based upon “recurring attacks” of intervertebral disc syndrome under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1997) should be based upon the severity of the attacks rather that the frequency of attacks. With respect to the period from July 1997 to September 2006, the Court found the September 2011 determination included conflicting findings as to the manifestation of neurological symptoms. To address the concerns of the Court, the Board remanded the claim in September 2014 to provide the Veteran a VA examination. The examiner was requested to identify all symptoms shown from August 23, 1995, to September 15, 2006, and address any resulting occupational impairment as a result of the low back disability. The examiner was requested to discuss the frequency and severity of any recurring attacks of intervertebral disc syndrome from August 23, 1995, to September 15, 2006. The examiner was also requested to discuss what limitation of lumbar spine motion was shown from August 23, 1995, to September 15, 2006, with consideration of any other factors that caused functional impairment such as weakened motion, painful motion, fatigability, incoordination, or excess motion. The examiner was requested to provide an opinion as to whether the disability resulted in a marked interference with employment or made the Veteran unable to secure or follow substantially gainful employment at any time during the period from August 23, 1995, to September 15, 2006. The requested examination was performed in June 2015. The examiner provided information regarding the current symptoms of the service-connected low back disability. The examiner stated that he made an attempt to question the Veteran about the state of his back condition and interference with employment between August 1995 and September 2006, but the Veteran did not provide sufficient information. Compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. The duty to assist includes conducting a thorough and contemporaneous medical examination. Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121 (1991). A retrospective medical opinion may be necessary and helpful in cases when the evidence is insufficient for an adequate determination. Chotta v. Peake, 22 Vet. App. 80 (2008). The Board appreciates the effort the June 2015 VA examiner made to obtain the requested retrospective information from the Veteran. However, as the Veteran did not provide sufficient information, it is unclear why the examiner did not provide the requested opinion based on a review of the available medical treatment records. On remand, the record should be provided for review by an appropriate VA examiner to obtain the medical opinion requested in the September 2014 remand. 4. Entitlement to an initial rating higher than 0 percent for the residuals of a tonsillectomy is remanded. In a February 2013 memorandum decision, the Court set aside the Board’s decision in September 2011 denying an initial compensable rating for residuals of a tonsillectomy. The Court found an additional VA medical examination was required to determine whether the Veteran’s reports of continued sore throats were related to the tonsillectomy or whether any recurrent symptom manifestations were due to the service-connected disability. To address the concerns of the Court, the Board remanded the claim in September 2014 to provide the Veteran a VA examination. The examiner was requested to address whether the Veteran’s reports of throat soreness may be associated with the service-connected residuals of a tonsillectomy. The requested examination was performed in April 2015. The Veteran told the examiner that he had a sore throat all of the time, and he felt that something was in his throat constantly. He also reported hoarseness and spitting out white mucous frequently. He also reported experiencing difficulty swallowing. The examiner did not address whether the Veteran’s reports of throat soreness may be associated with the service-connected residuals of a tonsillectomy. Compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. The duty to assist includes conducting a thorough and contemporaneous medical examination. Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121 (1991). Remand is required to obtain a medical opinion regarding whether the Veteran’s reports of continued sore throats are related to his tonsillectomy or whether any recurrent symptom manifestations are due to the service-connected disability, in accordance with the September 2014 remand. The matters are REMANDED for the following action: 1. Obtain all pertinent VA medical records, not yet associated with the claims file, and associate them with the claims file. 2. Obtain pertinent records from the Office of Personnel Management related to the Veteran’s federal employment disability claim, to include medical reports and examination reports of the claimed injuries, and associate them with the claims file. 3. Forward the claims file to an appropriate VA examiner for a retrospective medical opinion regarding the severity of the Veteran’s service-connected low back disability during the periods from August 23, 1995, to July 2, 1997, and July 2, 1997, to September 15, 2006. The examiner must review the claims file and should note that review in the report. From the treatment records and lay statements, the examiner should identify all manifest symptoms shown from August 23, 1995, to September 15, 2006, and address any resulting occupational impairment as a result of the disability. From the treatment records and lay statements, the examiner should discuss the frequency of severity of any recurring attacks of intervertebral disc syndrome from August 23, 1995, to September 15, 2006. From the treatment records and lay statements, the examiner should also discuss what limitation of lumbar spine motion was shown from August 23, 1995, to September 15, 2006, with consideration of any other factors that caused functional impairment such as weakened motion, painful motion, fatigability, incoordination, or excess motion. From the treatment records and lay statements, the examiner should also provide an opinion should as to whether the disability resulted in a marked interference with employment or made the Veteran unable to secure or follow substantially gainful employment at any time during the period from August 23, 1995, to September 15, 2006. 4. Schedule the Veteran for a VA examination to determine the severity of residuals of a tonsillectomy. All presently manifest symptoms should be identified. The examiner must review the claims file and must address whether reports of recurrent or intermittent symptoms, to specifically include episodes of throat soreness, hoarseness, spitting out white mucous, and difficulty swallowing may be associated with the service-connected residuals of a tonsillectomy. All necessary tests and studies should be conducted. 5. Schedule the Veteran for a VA examination of the right shoulder. The examiner must review the claims file and should note that review in the report. The examiner should provide ranges of right and left shoulder motion for passive and active motion and for weight-bearing and nonweight-bearing. The examiner should state whether there is any additional loss of function due to painful motion, excess motion, weakened motion, fatigability, incoordination, repetitive motion, or on flare up. 6. Readjudicate the claim for entitlement to a rating higher than 0 percent for a right shoulder disability from August 23, 1995, to August 29, 2005, and higher than 20 percent as of August 29, 2005, to specifically include consideration of the evidence obtained subsequent to the February 2017 statement of the case. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Layton, Counsel