Citation Nr: 18157243 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 13-17 222 DATE: December 12, 2018 REMANDED The issue of entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. The issue of entitlement to an initial rating in excess of 20 percent for cervical strain is remanded. The issue of entitlement to an initial rating in excess of 20 percent for lumbar spine degenerative disc disease is remanded. The issue of entitlement to an initial rating in excess of 20 percent for left hip strain is remanded. The issue of entitlement to an initial rating in excess of 20 percent for left knee patellofemoral syndrome with shell fragment wound residuals and retained shrapnel is remanded. The issue of entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) residuals is remanded. The issue of entitlement to an initial rating in excess of 10 percent for left lower extremity sciatica is remanded. The issue of entitlement to an initial rating in excess of 10 percent for right hip strain is remanded. REASONS FOR REMAND The Veteran had active service from September 2005 to July 2009. The Veteran served in Iraq and was awarded the Purple Heart Medal. The Veteran appeared at a March 2016 hearing before the undersigned Veterans Law Judge at the Los Angeles, California, Regional Office. The hearing transcript is of record. In June 2018, the Agency of Original Jurisdiction increased the initial rating for PTSD from 30 percent to 70 percent disabling; effectuated the award of a TDIU as of July 30, 2009, the day following service separation; increased the initial rating for cervical strain from 0 percent to 20 percent; increased the initial rating for lumbar spine degenerative disc disease from 10 percent to 20 percent; granted service connection for right lower extremity radiculopathy; assigned a 10 percent rating for that disability, effective December 1, 2017; and granted special monthly compensation based at the housebound rate, effective as of July 20, 2009. REASONS FOR REMAND 1. The issues of entitlement to an initial rating in excess of 70 percent for PTSD and an initial rating in excess of 10 percent for TBI residuals are remanded. The Department of Veterans Affairs (VA) has conducted a special review of TBI examinations completed between 2007 and 2015 in support of disability compensation claims for TBI. That review found a number of initial TBI examinations were not conducted by a physiatrist, psychiatrist, neurologist, or neurosurgeon as required. As a result, in May 2016, the Secretary of VA granted equitable relief that permits VA to provide new initial TBI examinations to impacted claimants. This appeal includes a TBI issue that is covered by the Secretary’s grant of equitable relief. In October 2016, the Veteran indicated that he wanted further VA TBI medical examination. In its February 2017 Remand instructions, the Board of Veterans’ Appeals (Board) requested that the Veteran be scheduled for “a TBI examination to be conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon).” The requested examination was conducted for VA in December 2017. The examination report states that the Veteran was examined by a “Family Medicine” physician rather than one of the four designated specialists. Compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Because of the cited deficiency in the December 2017 VA examination report, the Board finds that further action is required to comply with the February 2017 Remand instructions. Because of the nature of the service connected disabilities, the Board finds that the issue of a higher initial rating for PTSD is inextricably intertwined with the issue of a higher initial rating for the TBI residuals being remanded and therefore must also be remanded. A March 2018 VA treatment record states that the Veteran reported that he went “to the Veteran Center weekly” for treatment of the service connected disabilities. Clinical documentation dated after June 2018 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. The issue of entitlement to an initial rating in excess of 20 percent for cervical spine strain is remanded. The report of a December 2017 cervical spine examination conducted for VA concurrently states that: the Veteran was “not able to perform” range of motion testing as “any attempt at ROM causes pain which limits the Veteran’s ability to bend, twist and turn;” “the Veteran was in extreme pain today and was not able to perform ROM measuring;” the Veteran performed cervical range of motion testing and exhibited pain with forward flexion, extension, right lateral extension, left lateral extension, right lateral rotation, and left lateral rotation; and the Veteran exhibited “evidence of pain on passive range of motion testing.” The examiner did not indicate any specific cervical spine ranges of motion. Because of the conflicting examination findings, the Board is unable to discern the Veteran’s actual or functional cervical spine limitation of motion. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the cited deficiencies in the December 2017 cervical spine examination, the Board finds that further VA cervical spine evaluation is needed. 3. The issues of entitlement to initial ratings in excess of 20 percent for lumbar spine degenerative disc disease and in excess of 10 percent for left lower extremity sciatica are remanded. The report of a December 2017 lumbar spine examination conducted for VA concurrently states that: the Veteran was “not able to perform” range of motion testing as “Veteran was in such acute pain on today’s examination, range of motion was not possible;” the Veteran performed lumbar spine range of motion testing and exhibited pain with forward flexion and extension; and the Veteran exhibited “evidence of pain on passive range of motion testing.” The examiner did not indicate the specific lumbar spine ranges of motion. Because of the conflicting findings, the Board is unable to discern the actual and functional lumbar spine limitation of motion. Because of the cited deficiencies in the December 2017 lumbar spine examination, the Board finds that further VA lumbar spine evaluation is needed to determine the nature and severity of the service connected lumbar spine and left lower extremity radiculopathy disabilities. 4. The issues of entitlement to an initial rating in excess of 10 percent for right hip strain and an initial rating in excess of 20 percent for left hip strain are remanded. The report of a December 2017 examination conducted for VA concurrently states that: the Veteran was “not able to perform” range of motion testing as “Veteran was in such acute pain on today’s examination, range of motion was not possible;” the Veteran performed right hip and left hip range of motion testing and exhibited pain with flexion and extension; and the Veteran exhibited “evidence of pain on passive range of motion testing.” The examiner did not indicate the specific right hip and left hip ranges of motion. Given the conflicting findings, the Board is unable to discern the actual and functional right hip and left hip limitation of motion. Because of the cited deficiencies in the December 2017 hip examination, the Board finds that further VA hip spine evaluation is needed to determine the nature and severity of the service connected right hip and left hip disabilities. 5. The issue of entitlement to an initial rating in excess of 20 percent for left knee patellofemoral syndrome with shell fragment wound residuals and retained shrapnel is remanded. The Veteran was last provided a left knee examination in December 2017. A March 2018 VA treatment record states that the Veteran underwent left knee surgery in January 2018 and reinjured the left knee in a March 2018 fall. Because of those facts, the Board finds that further VA knee examination is needed to determine the current nature and severity of the service connected left knee disability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated the service connected PTSD, TBI, cervical spine, lumbar spine, left lower extremity sciatica, right hip, left hip, and left knee disabilities. Make two requests for any authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile 2. Obtain the Veteran’s VA treatment records dated after June 2018, including that provided at the Vet Center. 3. Schedule the Veteran for a TBI examination and mental disorders examination with a psychiatrist. The examiner must review the record and should note that review in the report. The examiner should provide the information necessary for a TBI protocol examination regarding the various facets associated with service-connected TBI residuals. The examiner should specifically confirm in the opinion having the credentials as a psychiatrist. The examiner should opine as to the levels of occupational impairment due to PTSD and should describe the severity and frequency of symptoms that result in those levels of impairment. 4. Schedule the Veteran for a VA spine examination to assist in determining the severity of the service connected cervical and lumbar spine disabilities, and left lower extremity sciatica. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of both the cervical spine and the lumbar spine. The examiner should state whether there is any additional loss of cervical spine and lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (b) Indicate whether, and to what extent, the Veteran experiences functional loss of the cervical spine and the lumbar spine due to pain or any other symptoms during flare ups or with repeated use. (c) Note all left lower extremity radiculopathy or other neurological impairment associated with the service connected lumbar spine degenerative disc disease. (d) Note any incapacitating episodes associated with the lumbar spine disability and the frequency and duration. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. 5. Schedule the Veteran for a VA orthopedic examination to assist in determining the current severity of service connected right hip, left hip, and left knee disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of the right hip, the left hip, left knee, and right knee. (b) State whether there is any additional loss of right hip, left hip, or left knee function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (c) State whether there is any recurrent lateral instability or subluxation of the left knee, and if so the severity of any instability or subluxation. (d) Identify the specific left lower muscle groups affected by the service connected left knee shell fragment wound residuals with retained shrapnel (metallic foreign bodies). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel