Citation Nr: 1806678 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 07-26 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for chronic mixed type vascular migraine and muscle contraction headaches. 2. Entitlement to a rating in excess of 20 percent for chronic cervical myositis, strain, degenerative joint disease, bulging discs C3-C4 and C5-C6 (cervical spine disorder). 3. Propriety of the assignment of a separate rating for radiculopathy of the right upper extremity, evaluated as 20 percent disabling as of June 30, 2017. 4. Propriety of the assignment of a separate rating for radiculopathy of the left upper extremity, evaluated as 20 percent disabling as of June 30, 2017. 5. Entitlement to a rating in excess of 20 percent for chronic low back pain (lumbar spine disorder). 6. Propriety of the assignment of a separate rating for radiculopathy of the right lower extremity, evaluated as 10 percent disabling as of June 17, 2015. 7. Propriety of the assignment of a separate rating for radiculopathy of the left lower extremity, evaluated as 10 percent disabling as of June 30, 2017. 8. Propriety of the assignment of an initial rating of 30 percent for depressive disorder effective April 28, 2014. 9. Entitlement to service connection for a right shoulder disorder, to include as secondary to a service-connected cervical and/or lumbar spine disorder. 10. Entitlement to service connection for a left shoulder disorder, to include as secondary to a service-connected cervical and/or lumbar spine disorder. 11. Entitlement to a total disability rating based on individual unemployability (TDIU). 12. Entitlement to earlier effective dates for the award of dependent benefits. REPRESENTATION Appellant represented by: Leslie D. Gaines, Attorney at Law ATTORNEY FOR THE BOARD T. Azizi, Counsel INTRODUCTION The Veteran had active duty service from October 1983 to July 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal of November 2005, September 2006, February 2015, November 2015, July 2016, and August 2017, rating decisions issued by Regional Offices (ROs) of the Department of Veterans Affairs (VA). Jurisdiction currently lies with the St. Petersburg, Florida RO. The appeal was remanded in February 2011, May 2013, and June 2017, for additional development, to include affording the Veteran a hearing before a member of the Board. In October 2017 the Veteran withdrew his request for a Board hearing. While on remand, in a November 2015 rating decision, the RO assigned a separate 10 percent rating for radiculopathy of the right lower extremity, effective June 17, 2015. The Veteran appealed that rating. Thereafter in an August 2017 rating decision the RO awarded disability ratings for radiculopathy of the upper extremities and assigned separate 20 percent disability ratings, respectively, as well as a 10 percent disability rating for left lower extremity radiculopathy, effective June 30, 207. In correspondence in October 2017 the Veteran's representative expressed disagreement with the ratings assigned and the effective dates of these ratings. The Board finds that these issues are subsumed as being part and parcel of the claims for increased ratings for lumbar and cervical spine disabilities as the rating criteria governing the evaluation of spine disorder specifically indicates that any associated objective neurologic abnormalities be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, General Rating formula for Diseases and Injuries of the Spine (2017). Therefore, the Board has jurisdiction over issue and it has been included on the title page of this decision. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Concerning the Veteran's claims for higher ratings for the service-connected cervical and lumbar spine disabilities, the Board has reviewed the Veteran's most recent VA examination findings from August 2017 and December 2017, and concludes that these findings do not meet the specifications of Correia v. McDonald, 28 Vet. App. 158, 168-169 (2016). Although range of motion testing was conducted, the examiner did not indicate whether range of motion testing was conducted in active motion, passive motion, weight-bearing and nonweight-bearing. In Correia, the Court found that 38 C.F.R. § 4.59 requires that VA joint examinations must, where possible, include range of motion results for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Id. at 165. Further, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a new VA examination is required. Given this, further examination is thus necessary under 38 C.F.R. § 3.159 (c) (4). When adjudicating the claims the AOJ should be mindful of the Court's holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) regarding painful motion. Next, the Veteran was last provided with a supplemental statement of the case in September 2016. Since that time, but prior to recertification of this appeal to the Board, the RO obtained new VA examinations, including and spine and headaches disorders examinations, and numerous VA treatment records that are not subject to a waiver of Agency of Original Jurisdiction (AOJ) review. In this regard, the Board points out that the appellate scheme set forth in 38 U.S.C. § 7104 (a) (West 2012) contemplates that all evidence will first be reviewed by the AOJ so as not to deprive the claimant of an opportunity to prevail on his claims at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Pursuant to 38 C.F.R. § 20.1304 (c) (2017), any pertinent evidence submitted to the Board by the AOJ after the certification of appeal must be referred to the AOJ for review, unless such procedural right is waived by the Veteran or his representative, or unless the Board determines that the benefits to which the evidence relates may be fully allowed on appeal without such referral. With respect to evidence received prior to certification to the Board, the AOJ must issue a supplemental statement of the case; notably, the governing regulations do not include a waiver provision, thus there is no legal authority for a claimant to waive, or the AOJ to suspend, this requirement. 38 C.F.R. §§ 19.31, 19.37. Accordingly, a remand is necessary to correct this due process deficiency. Next, in May 2013, the Board remanded the issue of entitlement to an effective date earlier than January 1, 2005 for the award of dependent benefits, to the AOJ to provide a statement of the case (SOC). The AOJ has not yet complied with this remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Manlicon v. West, 12 Vet. App. 238 (1999). Additionally, a July 2016 administrative decision granted dependents benefits for the Veteran's spouse and child, effective May 1, 2014. The Veteran indicated in an August 2016 statement that he disagreed with the assigned effective date for the award of dependent benefits; this filing constitutes a timely notice of disagreement. An SOC addressing this issue has not been issued. Similarly, in a rating decision in February 2015 the RO granted service connection for depressive disorder and assigned a 30 percent disability rating, effective April 28, 2014. The Veteran filed a timely notice of disagreement stating that he disagreed with the assigned effective date for the award and the rating assigned. An SOC addressing this appeal has not been issued. The Board is required to remand these claims for issuance of an SOC. Manlincon, Id. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran an SOC with respect to the claim of entitlement to an initial rating higher than 30 percent for depressive disorder, and the claim for earlier effective dates for the award of dependent benefits. This issuance should include notification of the need to timely file a substantive appeal to perfect an appeal on the issues. 2. Obtain all relevant ongoing VA treatment records dated since December 2017. 3. After the development requested above has been completed, schedule the Veteran for a VA examination to assess the current severity of his service-connected lumbar and cervical spine disability, to include any functional effects. The Veteran's claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. a) The examiner should determine the range of motion of the Veteran's lumbar and cervical spine disabilities, in degrees. Range of motion testing must include both passive and active motion, and in weight-bearing and nonweight-bearing conditions. It should be indicated whether and at what point during the Veteran's range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. If the Veteran endorses flare-ups of symptoms, the examiner must comment on the functional limitations of the lumbar and cervical spine disabilities, during such flare-ups, and the effect of pain on range of motion. If there is no flare-up at the time of the examination, the examiner is still asked to estimate further functional limitations based on the Veteran's subjective complaints and history. The examiner should also estimate any additional functional impairment after repeated use over time- based on the evidence of record and the Veteran's lay descriptions. The examiner should assess additional functional impairment on flare-up and after repeated use over a period of time in terms of the degree of additional range-of-motion loss, if possible. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. b) The examiner should note the presence of favorable ankylosis, unfavorable ankylosis. c) The examiner should discuss the severity of the service-connected radiculopathy in the upper and lower extremities and indicate whether the degree of impairment is best characterized as mild, moderate, moderately severe, or severe. The examiner is also asked to identify any other associated objective neurologic abnormalities, to include bowel or bladder impairment. d) Provide findings responsive to the criteria for rating intervertebral disc syndrome (IVDS) and specifically, comment on the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician), if there are any, in the last 12-month period. e) The examiner should assess the impact of the Veteran's service connected lumbar and cervical spine disabilities, on his activities of daily living, including his occupational functioning. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that she/ he cannot provide and opinion without resort to mere speculation is inadequate unless the examiner provides a rationale for that statement. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case (considering all evidence added to the record since the September 2016 supplemental statement of the case) and afford the Veteran the opportunity to respond, and the case should then be returned to the Board. The case should then be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).