Citation Nr: 18156254 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 08-36 294 DATE: December 7, 2018 REMANDED Entitlement to a compensable rating for bilateral wrist ganglion cysts, prior to February 1, 2012, to include on an extraschedular basis, 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 served on active duty from June 1985 to June 1994. Initial Matter The Board notes that the issues involving increased rating for cervical spine; lumbar spine; residuals of a left shoulder injury; radiculopathy of the left lower extremity; and, radiculopathy of the left upper extremity are part of a different appeal stream that is currently being developed at the RO at the post-notice of disagreement stage and the RO has not yet issued a statement of the case regarding these claims. The Board acknowledges that ordinarily those claims should be remanded for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran’s notice of disagreement has been acknowledged by the RO and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized. As such, the Board need not direct the RO in a remand to address these claims at this time. Procedural History In January 2012, as pertinent here, the Board remanded the issue of entitlement to compensable rating for bilateral wrist ganglion cysts for further development, to include obtaining outstanding medical evidence and providing the Veteran with VA examinations. Thereafter, in January 2014, as pertinent here, the Board denied the Veteran’s increased rating claim, and the Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, by a November 2014 Order, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s decision, to the extent that it denied entitlement to a compensable rating for bilateral wrist ganglion cysts prior to February 1, 2012. In May 2015, the Board continued to deny entitlement to a compensable rating for bilateral wrist ganglion cysts prior to February 1, 2012, and the Veteran again appealed that decision to the Court. Subsequently, by a February 2016 Order, the Court granted a JMPR that again vacated and remanded the Board’s denial of entitlement to a compensable rating for bilateral wrist ganglion cysts prior to February 1, 2012. In September 2016, the Board remanded the claim for further development in compliance with the February 2015 JMPR. Specifically, the Board identified possible outstanding medical treatment records and requested that the Veteran will be provided with a new VA examination. The Board indicated that the examiner should determine which of the Veteran’s reported symptoms were related to his service-connected bilateral wrist ganglion cysts, as well as to assess the severity of the disability prior to February 1, 2012. The Board additionally referred the claim for extraschedular consideration. In the September 2016 decision, the Board additionally raised the issue of entitlement to a TDIU prior to February 1, 2012. Post-Remand Development Subsequent to the Board’s September 2016 remand, the RO sent the Veteran an October 2016 letter requesting him to identify any private providers who treated his bilateral wrist ganglion cysts. In November 2016, the Veteran’s attorney responded to this request, indicating that he received treatment all through the VA, which did not require the submission of release forms. Nevertheless, in December 2016, the RO sent the Veteran a letter indicating that he identified receiving treatment from Audie L. Murphy Memorial VA Hospital and Victoria VA Outpatient Clinic in Victoria, Texas, and requested that he complete and return the authorization to disclose information forms. In January 2017, the Veteran’s attorney replied, indicating that since these were VA facilities, signed authorizations to disclose information were not necessary. For reasons unclear to the Board, the RO interpreted the January 2017 attorney’s letter as a Privacy Act Request for the aforementioned records. Thereafter, in March 2017, VA treatment records dated from 1999 to 2012 from the Honolulu VAMC were associated with the claims file as well as treatment records dated from 2005 to 2016 from the Victoria VAMC and Audie L. Murphy Memorial VA Hospital. In a March 2017 letter, the RO asked for additional information for the Veteran’s TDIU claim, to include address of an employer he listed on his July 2016 application. The Veteran attorney replied to this request later that month. Thereafter, in an April 2017 letter to the Veteran and his last employer, the RO asked that the employer return the enclose request for employment information. The RO requested this information again in June 2017 and later that month, the Veteran’s attorney responded, indicating that they have contacted the Veteran’s employer and were told that the employer responded to the RO’s request for information. In July 2017, the Veteran underwent a VA examination for skin diseases, at which time the examiner confirmed diagnosis of bilateral wrist ganglion cysts. The examiner noted that the disability impacted the Veteran’s ability to work due to pain in the area of the ganglion cysts on use of the wrists and at times of exacerbation of symptoms. The examiner further stated that the identified symptoms included bilateral wrist pain and functional limitation was due to pain with decreased dexterity, bilaterally. Also in July 2017, he Veteran underwent a VA examination for wrist conditions, at which time the examiner confirmed a diagnosis of bilateral ganglion cyst. The examiner stated that the ganglion cysts might possibly be an issue if the Veteran tried to perform extreme physically demanding manual labor, but in all other fields of work, the ganglion cyst will not impact employability. In terms of the relevant symptoms, the examiner stated that due to the ganglion cyst the Veteran had “decrease range of motion, firm and some subjective pain with pressure.” Additionally, the examiner noted that the Veteran had an established diagnosis of upper extremity peripheral neuropathy and bilateral ganglion cysts, and opined that while the ganglion cysts may cause localized tenderness and pain, the Veteran complaints of decreased grip strength and/or weakness of hand grip were not related to the ganglion cysts, but rather to his peripheral neuropathy. In an August 2017 letters to the Veteran and his last employer, the RO again requested the information needed for his TDIU claim. In a September 2017 correspondence, the Veteran’s attorney argued that the July 2017 VA examiner’s opinion that his decreased grip, numbness, and weakness were not related to his ganglion cysts was not supported by any rationale and was internally inconsistent with the empirical findings documented in the examination, which noted that the Veteran reported his symptoms were the same since service. The attorney indicated that the Board’s September 2016 remand specifically asked that the examiner not only identify and document the reported symptoms, but also explain the rationale and reasoning for all opinions and conclusions. Lastly, the attorney asked that the Veteran will be provided with an additional examination. In a February 2018 letter, the Veteran’s attorney stated that despite making numerous attempts to contact the Veteran’s last employer and obtain the necessary information, they received no reports, and as such determined that further attempts to obtain this information will be futile. In February 2018, the RO ordered a new VA examination; however, a March 2018 exam request showed that the examination was cancelled in time because the Veteran was unavailable. Following a referral for extraschedular consideration, in an Email correspondence dated in April 2018, the RO noted that the last sentence in the formal response was incorrect, since it stated, “An increased extra-schedular evaluation for left great toe implant or right metatarsophalangeal arthritis in excess of 30 percent is not warranted” while the request for this Veteran was regarding his bilateral ganglion cysts. Thereafter, in an April 2018 rating decision, the RO denied entitlement to a TDIU, finding that evidence form February 26, 2018 showed that they requested to schedule an examination in support of his claim, but on March 7, 2018, the evidence showed that the examination was cancelled without good cause. The Veteran submitted a notice of disagreement with the April 2018 rating decision, in which his attorney stated that he was out of town when the March 2018 VA examinations were scheduled, and thus good cause for cancelling was shown. Subsequently, in a July 2018 Advisory Opinion, a VA Director of Compensation and Pension Service denied extraschedular ratings for the bilateral wrist ganglion cysts higher than 10 percent as well as TDIU due to the combined effect of the Veteran’s service-connected disabilities. In August 2018, the Veteran’s attorney stated that they were notified that the RO obtained an updated opinion from the Director regarding entitlement to increase on an extraschedular basis, and requested a copy of the opinion. In October 2018, the RO issued a supplemental statement of the case that continued denying the issues on appeal. Lastly, in an October 2018 correspondence, the Veteran’s attorney argued that TDIU should have been addressed from 2006 to the present, since in its September 2016 remand, the Board incorrectly stated that “per the parties’ agreement in the JMPR, the time period for consideration of TDIU in this appeal, based on the underlying increased rating claim, is limited to that prior to February 1, 2012.” However, the attorney argued that the JMPR vacated and remanded the Board’s decision to the extent that it denied entitlement to a compensable rating for bilateral wrist ganglion cysts, and did not even mention anything about TDIU. Reasons for Remand After a careful review of the procedural and factual evidence discussed above, the Board finds that an additional remand is necessary. The Board agrees that the July 2017 VA examinations failed to adequately address the Board’s September 2016 remand directives. In addition to not proving a rationale regarding the relationship of all identified symptoms to the Veteran’s bilateral wrist ganglion cysts, neither examiner discussed the nature and severity of his bilateral ganglion wrist cyst disability, prior to February 1, 2012, but instead focused solely on the current severity of the disability. Additionally, upon review, the Board finds that limiting the Veteran’s TDIU claim to only prior to February 1, 2012 was unjustified. Notably, the original increased rating claim stems from an October 2006 rating decision, and a TDIU is part and parcel of every increased rating claim. Furthermore, the Veteran in not in receipt of a TDIU after February 1, 2012, and the Veteran’s attorney properly indicated that TDIU was mentioned by the most recent JMPR. Furthermore, the Board finds that the Veteran showed good cause for his inability to attend the March 2018 scheduled VA examination, and notified the RO of it in July 2018, approximately three-months prior to the issuance of the October 2018 SSOC; however, the RO did not make any attempts to reschedule the VA examination. Lastly, regarding the Director’s July 2018 Advisory Opinion, the Board finds that it failed to address the requested issues. Specifically, the referral for extraschedular consideration was regarding entitlement to a compensable rating for bilateral wrist ganglion cysts prior to February 1, 2012. Nevertheless, the Director only addressed whether extraschedular consideration was warranted for a rating higher than the currently assigned 10 percent. In addition, the Director’s opinion addressed entitlement for an extraschedular rating based on the combined effect of multiple service-connected disabilities, which is no longer available for this claim, as it as pending before VA on or after January 8, 2018. See 82 Fed. Reg. 57830 (Dec. 8, 2017). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records since June 2017 are associated with the claims file. 2. Then, provide the Veteran with a VA examination to determine the current severity of his bilateral wrist ganglion cysts prior to February 1, 2012. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) To the extent possible, elicit from the Veteran and the available treatment records all signs and symptoms of his bilateral wrist ganglion cysts prior to February 1, 2012. (b) Identify which reported symptoms (to specifically include pain, numbness, stiffness, instability, lack of endurance, swelling, fatigability, limitation of motion, and inability to grasp items) are related to the diagnosis of ganglion cyst and describe any functional limitations associated with those symptoms. (c) For each reported symptom that is determined to not be related to the Veteran’s bilateral wrist ganglion cysts, provide an opinion supported by a rationale why such symptom is not related to the disability. 3. After the above development is completed, the AOJ should refer the case to the Director of Compensation and Pension for a determination as to whether the Veteran is entitled to assignment of an extraschedular compensable rating for bilateral ganglion wrist cysts prior to February 1, 2012, in accordance with the provisions of 38 C.F.R. § 3.321(b). The AOJ should include a full statement of all factors having a bearing on the issue. (Continued on the next page)   4. Thereafter, readjudicate the increased rating and TDIU claims on appeal. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel