Citation Nr: 18157700 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 11-00 688 DATE: December 13, 2018 REMANDED Entitlement to a rating in excess of 30 percent for degenerative arthritis of the cervical spine is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the left knee is remanded. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 50 percent for persistent depressive disorder with anxious stress is remanded. Entitlement to an effective date prior to November 30, 2015, for the award of a 20 percent rating for left upper extremity radiculopathy is remanded. Entitlement to an effective date prior to November 30, 2015, for the award of a 20 percent rating for right upper extremity radiculopathy is remanded. Entitlement to an effective date prior to December 10, 2015, for the award of service connection for persistent depressive disorder with anxious stress is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to December 10, 2015 is remanded. Entitlement to an effective date prior to December 10, 2015, for the award of Dependents' Educational Assistance (DEA benefits) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to June 1976. He also served in the Air Force Reserve from February 1982 to November 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009, May 2011, and May 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2015 and July 2016, the Board remanded the issues of entitlement to increased ratings for the Veteran’s cervical spine and left knee disabilities for additional development and, in August 2017, the Board the claims. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted the Veteran’s and the Secretary of VA’s (the parties) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s August 2017 decision for action consistent with the JMPR. The August 2017 Board decision also remanded the issues of entitlement to service connection for headaches, a thoracolumbar disability, a bilateral hip disability, and bilateral lower extremity neuropathy. Thereafter, an August 2018 rating decision granted service connection for such disabilities. Consequently, as the full benefit sought on appeal with regard to such claims has been granted, they are no longer on appeal. The Board notes that additional evidence, to include updated VA treatment records and VA examinations, was associated with the record since the issuance of the May 2017 supplemental statement of the case pertaining to the Veteran’s claims for increased ratings for his cervical spine and left knee disabilities. However, as his claims are being remanded, the Agency of Original Jurisdiction (AOJ) will have an opportunity to review the newly received evidence. 1. Entitlement to a rating in excess of 30 percent for degenerative arthritis of the cervical spine. 2. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the left knee. In denying the Veteran’s claims for a higher ratings for the his cervical spine and left knee disabilities in the August 2017 decision, the Board relied upon VA examinations conducted in November 2009, April 2011, and November 2015. However, in the JMPR, the parties found such VA examinations to be inadequate as they did not comply with the Court’s holdings in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Consequently, a remand is necessary in order to afford the Veteran a new VA examination that addresses the nature and severity of his cervical spine and left knee disabilities in accordance with the Court’s guidance. 3. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy. 4. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy. 5. Entitlement to an initial rating in excess of 50 percent for persistent depressive disorder with anxious stress. 6. Entitlement to an effective date prior to November 30, 2015, for the award of a 20 percent rating for left upper extremity radiculopathy. 7. Entitlement to an effective date prior to November 30, 2015, for the award of a 20 percent rating for right upper extremity radiculopathy. 8. Entitlement to an effective date prior to December 10, 2015, for the award of service connection for persistent depressive disorder with anxious stress. 9. Entitlement to a TDIU prior to December 10, 2015. 10. Entitlement to an effective date prior to December 10, 2015, for the award of DEA benefits. In a May 2017 rating decision, the AOJ granted increased ratings of 20 percent for left and right upper extremity radiculopathy as of November 30, 2015, and granted service connection for persistent depressive disorder with anxious stress, with an initial 50 percent rating, and a TDIU and DEA benefits, effective December 10, 2015. In June 2017, the Veteran entered a notice of disagreement as to the propriety of the assigned ratings for his service-connected disabilities and the effective dates for the award of the increased ratings, service connection, a TDIU, and DEA benefits. While such issues were initially recorded in the Veterans Appeals Control and Locator System, they were closed out as of December 2018. However, there is no indication that such were withdrawn from appeal by the Veteran or granted to his satisfaction. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case as to such issues is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, they will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The matters are REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected cervical spine disability. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests and studies should be undertaken. If possible, such examinations should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s cervical spine disability. (B) The examiner should record the range of motion of the cervical spine observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran’s cervical spine disability conducted in November 2009, April 2011, and November 2015. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his cervical spine disability, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner should also comment upon the functional impairment resulting from the Veteran’s cervical spine disability. A rationale should be provided for every opinion offered. 2. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected left knee disability. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests and studies should be undertaken. If possible, such examinations should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s left knee disability. (B) The examiner should record the range of motion of the left knee observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the left knee disability conducted in November 2009, April 2011, and November 2015. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his left knee disability, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner should also comment as to whether (and if so, to what extent, (i.e., slight, moderate, or severe)) the Veteran’s left knee disability results in recurrent subluxation or lateral instability. (G) The examiner should also indicate whether there is dislocated or removed semilunar cartilage of the left knee and, if so, the nature of the symptoms associated with such meniscus impairment. (H) The examiner should also comment upon the functional impairment resulting from the Veteran’s left knee disability. A rationale should be provided for every opinion offered. 3. Provide the Veteran and his representative with a statement of the case regarding the issues of entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy, a rating in excess of 20 percent for right upper extremity radiculopathy, an initial rating in excess of 50 percent persistent depressive disorder with anxious stress, an effective date prior to November 30, 2015, for the award of a 20 percent rating for right upper extremity radiculopathy, an effective date prior to November 30, 2015, for the award of a 20 percent rating for right upper extremity radiculopathy, an effective date prior to December 10, 2015, for the award of service connection for persistent depressive disorder with anxious stress, a TDIU prior to December 10, 2015, and an effective date prior to December 10, 2015, for the award of DEA benefits. Advise them of the time period in which to perfect an appeal. If the Veteran perfects his appeal of such issue in a timely fashion, then return the case to the Board for its review, as appropriate. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel