Citation Nr: 18153649 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-07 018 DATE: November 28, 2018 REMANDED Entitlement to service connection for a lumbar spine disorder. Entitlement to a disability rating in excess of 30 percent for cervical spondylosis with disc protrusion, status post fusion. Entitlement to a disability rating in excess of 20 percent for cervical radiculopathy and carpal tunnel syndrome of the right upper extremity. Entitlement to a disability rating in excess of 20 percent for cervical radiculopathy and carpal tunnel syndrome of the left upper extremity. Entitlement to an effective date prior to September 15, 2014, for the award of a 20 percent rating for cervical radiculopathy of the right upper extremity. Entitlement to an effective date prior to September 15, 2014, for the award of a 20 percent rating for cervical radiculopathy of the left upper extremity. Entitlement to a total disability rating due to individual unemployability (TDIU). Whether a September 25, 2014 rating decision that awarded a separate 20 percent rating for cervical radiculopathy of the right upper extremity under Diagnostic Code 8510, in addition to an already existing 10 percent rating for carpal tunnel syndrome of the right upper extremity under Diagnostic Code 8515, contained clear and unmistakable error (CUE). Whether a September 25, 2014 rating decision that awarded a separate 20 percent rating for cervical radiculopathy of the left upper extremity under Diagnostic Code 8510, in addition to an already existing 10 percent rating for carpal tunnel syndrome of the left upper extremity under Diagnostic Code 8515, contained CUE. REASONS FOR REMAND The Veteran had active duty from June 1983 to August 1983 and from March 2003 to August 2004. Unfortunately, another remand is required in this case. In its October 2017 remand, the Board noted that in July 2016 the Veteran filed a notice of disagreement (NOD) against an April 2016 rating decision which found clear and unmistakable error in a previous rating decision which granted separate evaluations for bilateral upper extremity radiculopathy and carpal tunnel syndrome; however, the RO had not responded with a statement of the case (SOC). This CUE claim was noted to be inextricably intertwined with the higher initial rating claims for a cervical spine disability and for upper extremity neurological disabilities, as well as the TDIU claim, currently on appeal. Thereafter, in November 2017 the RO issued an SOC on the claims for higher ratings for cervical radiculopathy and carpal tunnel syndrome of the bilateral upper extremities, issues that had already been perfected on appeal before the Board. The Veteran has still not been provided with an SOC on his CUE claims. This must be accomplished on remand. Further, the Board notes that the claims for service connection for a lumbar spine disorder and for an earlier effective date for the award of the 20 percent ratings for cervical radiculopathy of the upper extremities are inextricably intertwined with the TDIU claim. Thus, they are deferred at this time. The Veteran is also owed a supplemental statement of the case on his claims, as the record reflects that additional VA medical treatment records dated from December 2017 to October 2018 and a November 2018 VA examination report were associated with the claims file after the issuance of a November 2017 supplemental statement of the case (SSOC). See 38 C.F.R. § 19.31. Finally, the Veteran’s updated VA treatment records should be obtained and he should be scheduled for VA examinations, as described below. The matter is REMANDED for the following action: 1. Send the Veteran a Statement of the Case on the following claims: (a) Whether a September 25, 2014 rating decision that awarded a separate 20 percent rating for cervical radiculopathy of the right upper extremity under Diagnostic Code 8510, in addition to an already existing 10 percent rating for carpal tunnel syndrome of the right upper extremity under Diagnostic Code 8515, contained clear and unmistakable error; and (b) Whether a September 25, 2014 rating decision that awarded a separate 20 percent rating for cervical radiculopathy of the left upper extremity under Diagnostic Code 8510, in addition to an already existing 10 percent rating for carpal tunnel syndrome of the left upper extremity under Diagnostic Code 8515, contained clear and unmistakable error. 2. Obtain the Veteran’s VA treatment records, dated from October 2018 forward. 3. Arrange for a VA examination to assess the current severity of the Veteran's cervical spondylosis with disc protrusion, status post fusion. The Veteran's entire claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. In the examination report, the examiner must include all of the following: (a) Active range of motion testing results; (b) Passive range of motion testing results; (c) Weightbearing range of motion testing results; and (d) Non-weightbearing range of motion testing results. If the examiner is unable to conduct one or more of these tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. 4. Arrange for a VA examination to assess the current severity of the Veteran's neurological disabilities of the upper extremities. The Veteran's entire claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. 5. Arrange for appropriate VA examination(s) to assess the Veteran's TDIU claim. The Veteran's entire claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner(s). The examination report(s) must reflect that such a review was undertaken. The examination(s) should include any necessary diagnostic testing or evaluation. (Continued on the next page)   6. Finally, readjudicate the following claims: Entitlement to service connection for a lumbar spine disorder; Entitlement to a disability rating in excess of 30 percent for cervical spondylosis with disc protrusion, status post fusion; Entitlement to a disability rating in excess of 20 percent for cervical radiculopathy and carpal tunnel syndrome of the right upper extremity; Entitlement to a disability rating in excess of 20 percent for cervical radiculopathy and carpal tunnel syndrome of the left upper extremity; Entitlement to an effective date prior to September 15, 2014, for the award of a 20 percent rating for cervical radiculopathy of the right upper extremity; Entitlement to an effective date prior to September 15, 2014, for the award of a 20 percent rating for cervical radiculopathy of the right upper extremity; and Entitlement to a TDIU. If the benefits on appeal remain denied, furnish the Veteran and his attorney with a copy of a SSOC and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Sangster, Counsel