Citation Nr: 18159874 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 13-21 776 DATE: December 20, 2018 REMANDED Entitlement to an evaluation in excess of 20 percent for a lumbar strain with degenerative disc disease (DDD) and degenerative joint disease (DJD) (hereinafter “lumbar spine disability”) is remanded. Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy associated with a lumbar spine disability is remanded. Entitlement to an evaluation in excess of 10 percent for left lower extremity radiculopathy associated with a lumbar spine disability is remanded. Entitlement to an evaluation in excess of 10 percent for right knee degenerative changes is remanded. Entitlement to an evaluation in excess of 10 percent for left knee degenerative changes is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from June 1977 to June 1981. These matters come before the Board of Veteran’s Appeals (Board) on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Recently, an April 2018 rating decision granted service connection for diffuse idiopathic skeletal hyperostosis (DISH) affecting the cervical spine, bilateral shoulders, bilateral elbows, and bilateral wrists; and conjunctivitis. The April 2018 rating decision also awarded entitlement to Dependents’ Educational Assistance (DEA), and effectuated the September 2017 Board decision to the extent the Board granted separate 10 percent ratings for the Veteran’s right and left knee instability for the period prior to November 23, 2015. In July 2018 (two letters) and August 2018 (two letters), the Veteran expressed disagreement with the ratings and effective dates – except the Board notes that entitlement to higher ratings for the Veteran’s lower extremity radiculopathy is already on appeal before the Board herein. However, effective March 24, 2015, a notice of disagreement must be filed on the requisite form – which is presently a Form 21-0958. Therefore, should the Veteran wish to file an actual notice of disagreement with the April 2018 rating decision with regard to those ratings and effective dates, he must file a formal notice of disagreement on a Form 21-0958 within one year of notice of the April 2018 rating decision. See 38 C.F.R. §20.201(a) (2017); see also 79 Fed. Reg. 57698. The issues of entitlement evaluations in excess of 10 percent for the Veteran’s right and left knee instability for the period prior to November 23, 2015, and entitlement to an effective date prior to November 23, 2015, for those ratings are not presently on appeal before the Board. The prior September 2017 Board decision awarded the 10 percent ratings. The May 2018 Court Order did not disturb that portion of the Board decision, which has become final. The Veteran is free to file a formal notice of disagreement as to the effective date of the award of those 10 percent ratings assigned by the RO in the April 2018 rating decision, as explained above. However, should he also wish to pursue higher ratings for his right and left knee instability, he must file a complete claim for an increased rating on the form prescribed by the Secretary, which is available online at https://www.ebenefits.va.gov/ebenefits. See 38 C.F.R. §§ 3.1(p) and 3.150(a) (effective March 24, 2015). 1. Entitlement to an evaluation in excess of 20 percent for a lumbar spine disability 2. Entitlement to an evaluation in excess of 10 percent for left lower extremity radiculopathy associated with a lumbar spine disability 3. Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy associated with a lumbar spine disability A September 2017 Board decision denied the Veteran’s claim of entitlement to an evaluation in excess of 20 percent for his lumbar spine disability. A May 2018 Order of the Court of Appeals for Veterans Claims (Court) granted a joint motion by the parties for partial vacatur and remand. The parties agreed in their motion that the September 2017 Board decision did not adequately address evidence of lower extremity radiculopathy associated with the Veteran’s lumbar spine disability. The Board acknowledges that the schedular rating criteria for diseases and injuries of the spine provide for rating any associated neurologic manifestations such as radiculopathy. See 38 C.F.R. §4.71a, DCs 5235-5243, Note (1). Meanwhile, during the pendency of the Veteran’s appeal to the Court, an April 2018 rating decision granted separate 10 percent ratings for right and left lower extremity radiculopathy associated with the Veteran’s lumbar spine disability. As this did not constitute a grant of the full benefit sought on appeal (100 percent), entitlement to higher ratings for the lower extremity radiculopathy remains on appeal before the Board. However, before the Board can make a decision with regard to the increased rating claims for the Veteran’s lumbar spine disability and associated right and left lower extremity radiculopathy, the Board finds that, regrettably, a remand is required for further development. The Veteran was most recently afforded a November 2015 VA examination relating to his lumbar spine disability and associated radiculopathy. Subsequently, however, the Court held in Correia that a VA musculoskeletal examination was inadequate because it did not include “the results of range of motion testing ‘for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing.’” See Correia v. McDonald, 28 Vet. App. 158 (2016) (quoting 38 C.F.R. §4.59). The November 2015 VA examination report shows that pain was noted with weight-bearing, but it did not include the results of range of motion testing in weight-bearing and non-weight bearing. Therefore, the Board finds that the lumbar spine disability rating claim should be remanded for a new VA examination consistent with Correia. The examiner should also address the current severity of the Veteran’s associated right and left lower extremity radiculopathy. 4. Entitlement to an evaluation in excess of 10 percent for right knee degenerative changes is remanded. 5. Entitlement to an evaluation in excess of 10 percent for left knee degenerative changes is remanded. 6. Entitlement to a TDIU is remanded. The September 2017 Board decision also denied the Veteran’s claims for evaluations in excess of 10 percent (each) for his right and left knee degenerative changes. The May 2018 Court Order granted a joint motion by the parties to vacate the September 2017 Board denial of increased ratings for the Veteran’s right and left knee degenerative changes. The parties cited the fact that an April 2009 VA examination report (which was not the most recent examination) did not adequately address functional loss due to pain during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Deluca v. Brown, 8 Vet. App. 202, 205-206 (1995); 38 C.F.R. §4.40 (2017). The parties agreed that the Board therefore provided its own medical judgment in finding that the functional loss due to the Veteran’s reports of 30-second flare-ups of pain was “nominal.” The parties cited to Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991), noting that the Board “may only consider independent medical evidence to support [its] findings rather than provide [its] own medical judgment in the guise of a Board opinion.” The May 2018 Court Order in this case did not set aside the Board’s grant of additional 10 percent ratings for right and left knee instability (each) for the period prior to November 23, 2015. In light of the above, the Board finds that a remand is necessary to obtain a VA medical opinion to address the functional loss due to pain during flare-ups at the time of the April 2009 VA examination (to the extent feasible). In addition, as noted above, the Court recently held in Correia that VA musculoskeletal examinations should include “the results of range of motion testing ‘for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing.’” See Correia v. McDonald, 28 Vet. App. 158 (2016) (quoting 38 C.F.R. §4.59). The most recent November 2015 VA examination report does not include the results of range of motion testing in passive and active motion, weight-bearing and non-weight bearing. Therefore, on remand, the Veteran should be afforded a new VA examination consistent with Correia. Regarding the TDIU claim, although the Veteran has 100 percent disability compensation, effective July 16, 2008, the RO’s dismissal of the issue of entitlement to a TDIU as moot was erroneous, and the issue of entitlement to a TDIU remains on appeal before the Board. The issue of entitlement to a TDIU is not moot because should the Veteran be awarded a TDIU rating (100 percent) based on one disability, he could meet the statutory criteria for consideration of entitlement to special monthly compensation (SMC) if he has a separate disability rated at 60 percent or greater. See Bradley v. Peake, 22 Vet. App. 280 (2008); 38 U.S.C.A. § 1114(s). The “60 percent” requirement in 38 U.S.C. §1114(s) may be met by “pool[ing] multiple disabilities . . . by using the combined ratings table” in 38 C.F.R. §4.25. See Gazelle v. McDonald, 27 Vet. App. 461, 467 (2016). At this time, the Board defers decision on the TDIU matter pending the development directed in this remand for the lumbar spine, radiculopathy, and knee rating claims. The matters are REMANDED for the following action: 1. Schedule a new VA examination to address the current severity of the Veteran’s service-connected a) lumbar spine disability, b) associated bilateral lower extremity radiculopathy, and c) bilateral knee degenerative changes. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. To avoid further remand, the examination must comply with the requirements of 38 C.F.R. § 4.59 involving measurements of passive and active range of motion - in both weight bearing and non-weight bearing. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. The examiner should be asked to note whether there is any weakened movement, excess fatigability, incoordination, or pain on use. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups. Before determining that additional functional loss in terms of degrees of loss of motion cannot be given, the examiner should attempt to elicit information from the record and from the Veteran regarding the severity, frequency, duration, and functional loss manifestations due to pain during flare-ups. The examiner should also address the effect of the Veteran’s lumbar spine disability, associated lower extremity radiculopathy, and bilateral knee degenerative changes on his occupational functioning and activities of daily living. (Continued on the next page)   Also, please ask the VA examiner to review the April 2009 VA examination report and the rest of the record, and to provide a medical opinion to address whether pain during flare-ups additionally limited functional ability at the time of the April 2009 VA examination (to the extent feasible), including in terms of any additional degrees of loss of motion due to pain during flare-ups. 2. Then, readjudicate the Veteran’s claims, including but not limited to entitlement to a TDIU as discussed in this remand. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Juliano, Counsel