Citation Nr: 1806619 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 07-04 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc disease (DDD). 2. Entitlement to increases in the ratings for cervical strain (currently rated 10 percent prior to September 29, 2014, and 20 percent from that date). 3. Entitlement to a compensable rating for residuals of compression fracture, T10 vertebra. 4. Entitlement to an initial rating in excess of 50 percent for tension headaches. 5. Entitlement to an initial rating in excess of 10 percent for sciatica of the right lower extremity. 6. Entitlement to an initial rating in excess of 10 percent for ulnar sensory neuropathy of the right upper extremity. 7. Entitlement to an initial rating in excess of 10 percent for ulnar sensory neuropathy of the left upper extremity. 8. Entitlement to increases in the ratings for borderline personality disorder with residuals of a linear skull fracture (currently rated 30 percent prior to December 18, 2012, and 70 percent from that date). 9. Entitlement to an earlier effective date for the grant of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Travis Sayre, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Matta, Counsel INTRODUCTION The Veteran served on active duty from March 1975 to June 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The RO, in pertinent part, granted service connection for the lumbar spine DDD and assigned an initial 10 percent rating, effective July 2005. The same decision also denied increased ratings for the Veteran's cervical strain and residuals of a T10 compression fracture. In August 2010, a videoconference hearing was held before the undersigned; a transcript is in the record. In September 2011, the Board remanded these matters for additional development. An October 2016 rating decision increased the Veteran's rating for service-connected cervical strain to 20 percent, effective September 29, 2014. The Veteran has not expressed satisfaction with that determination and the appeal in the matter continues. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The claim seeking increased ratings for a cervical spine disability is characterized to reflect that "staged" ratings are assigned, and that all stages are on appeal. In December 2013, the RO, in pertinent part, awarded service connection effective December 18, 2012, for tension headaches (50 percent), sciatica of the right lower extremity (10 percent), ulnar sensory neuropathy of the right upper extremity (10 percent), and ulnar sensory neuropathy of the left upper extremity (10 percent). The same decision also increased the disability rating for borderline personality disorder to 70 percent effective December 18, 2012. The Veteran filed a notice of disagreement (NOD) in January 2015 as to these ratings. In October 2016, the RO, in pertinent part, awarded entitlement to TDIU effective December 18, 2012. The Veteran filed a timely NOD in October 2017 with the effective date for TDIU. The Board takes limited jurisdiction of these issues for corrective action pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). See also Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on her part is required. REMAND Although the Board regrets the delay in deciding this appeal that inevitably will result from this additional remand, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. Increased Ratings for Service-Connected Cervical Strain, DDD of the Lumbar Spine, and Compression Fracture of T10 While these issues were before the RO, the U.S. Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Court clarified the requirements that must be met with respect to orthopedic disability examinations prior to the Board finding that an examination report includes adequate evidence to adjudicate the claim. Id. After reviewing the VA spine examinations of record, the Board finds that they are incomplete and require further medical guidance, in light of the recent holding in Correia. As the previous VA spine examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claims. Additionally, the Board notes that a February 2015 VA treatment record notes that the Veteran's chronic back pain was aggravated by a recent fall. Accordingly, the Board finds that another examination is required on this basis as well. The appellate record also appears incomplete. The September 2011 Board remand also instructed the RO to obtain outstanding private medical records as the Veteran specifically testified as to receiving chiropractic treatment from Dr. FC. In August 2014 correspondence, the RO requested that the Veteran complete a VA Form 21-4142 to obtain private treatment records from Dr. FC and Geisinger Wyoming Valley Medical Center (Geisinger). To date, the Veteran has not submitted the requested form which would allow the RO to obtain such records. However, she has submitted some (incomplete) records from Geisinger. The Board considers this as a willingness to cooperate with evidentiary development in this matter. As further development is necessary anyway, the RO should again attempt to obtain private treatment records from the Veteran herself or the private medical facilities (after the Veteran submits a completed VA Form 21-4142). Additional Claims As noted in the Introduction, in December 2013, the RO awarded service connection effective December 18, 2012, for tension headaches, sciatica of the right lower extremity, ulnar sensory neuropathy of the right upper extremity, and ulnar sensory neuropathy of the left upper extremity. The Veteran disagreed with the initial ratings assigned. In October 2016, the RO awarded TDIU effective December 18, 2012. The Veteran disagreed with the effective date assigned. A review of the Veterans Appeals Control and Locator System (VACOLS) shows that those issues are listed as being on appeal but do not otherwise indicate that the RO is currently processing these matters. Moreover, the RO did not responsively issue a statement of the case on these issues. Where an NOD has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the matter for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated actions in order to obtain copies of any VA and/or private clinical records not already on file pertaining to treatment for the cervical, thoracic, and lumbar spine disabilities on appeal. Specifically, after obtaining all necessary authorizations from the Veteran, the RO should also undertake all appropriate steps to obtain any identified treatment records from Dr. FC dated after July 2008 and all treatment records from Geisinger. All requests for records and their responses should be clearly delineated in the electronic record; an additional request must be made if there is no response to the initial request for records. 2. The Veteran must be afforded a VA examination to determine the severity of her service-connected cervical strain, DDD of the lumbar spine, and compression fracture of T10. The electronic claim file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Any indicated diagnostic tests and studies must be accomplished. The examiner must use the most recent Disability Benefits Questionnaire for musculoskeletal disabilities, which complies with the mandates in Correia. All pertinent symptomatology and findings necessary to rate these disorders must be reported in detail. (i) The examiner must determine the active range of motion of the Veteran's cervical, thoracic, and lumbar spine, in degrees, by use of a goniometer noting by comparison the normal range of motion of these segments of the spine. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and non-weight bearing. The examination report must confirm that all such testing has been made and reflect those testing results. (ii) The examiner must also perform active and passive repetitive range of motion testing. If pain on motion is shown, the examiner must state at what degree the pain begins. The examiner must also state whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected disabilities expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Additionally, an opinion must be stated as to whether any pain found in the cervical, thoracic, and lumbar spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. (iii) The examiner must also specifically state whether there is any intervertebral disc syndrome and if so, state the total duration of incapacitating episodes. (iv) The examiner must also indicate whether there are any associated objective neurologic abnormalities (other than sciatica of the right lower extremity and ulnar sensory neuropathy of the bilateral upper extremities), including but not limited to bowel or bladder impairment. (v) If possible, the examiner must state whether there is any additional disability and/or functional limitation that is the result of her recent fall and not due to the service-connected disability. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The examination(s) report must be reviewed to ensure it is (they are) in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. 4. After completion of the above development, and any other action that is deemed warranted, the RO must readjudicate the issues of entitlement to increased ratings for DDD of the lumbar spine, cervical strain, and compression fracture of T10. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 5. Appropriate action, including the issuance of a statement of the case and notification of the Veteran's appellate rights on the issues of increased ratings for headaches, right lower extremity sciatica, ulnar sensory neuropathy of the bilateral upper extremities, and borderline personality disorder, and entitlement to an earlier effective date for TDIU, is necessary. 38 C.F.R. § 19.26 (2017). The Veteran and her representative are reminded that to vest the Board with jurisdiction over these issues, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2017). If the Veteran perfects the appeal as to these issues, the issues must be returned to the Board for appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. L. WALLIN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).