Citation Nr: 1808595 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 04-16 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for discogenic disease at C5-C7 with muscle spasm and C4-C5 small posterior disc protrusion. 2. Entitlement to an initial disability rating in excess of 10 percent for sensory/neurological manifestations in the left hand associated with discogenic disease at C5-C7 with muscle spasm and C4-C5 small posterior disc protrusion, prior to July 11, 2016, and 40 percent therefrom. 3. Entitlement to an initial rating in excess of 10 percent for sensory/neurological manifestations in the right hand associated with discogenic disease at C5-C7 with muscle spasm and C4-C5 small posterior disc protrusion. 4. Entitlement to an initial rating in excess of 10 percent for right knee patellar tendinitis and degenerative joint disease (exclusive of the period from June 8, 2017, until August 1, 2017, during which time a temporary total evaluation was assigned pursuant to 38 C.F.R. § 4.30). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to November 1992. This case was originally before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In a December 2006 rating decision, the RO granted an increased rating of 10 percent for the service-connected right knee patellar tendinitis and degenerative joint disease, effective from December 11, 2004. Then, in a July 2017 rating decision, the RO increased the disability ratings of the service-connected disabilities as follows: (1) a 40 percent evaluation was assigned for discogenic disease at level C5 to C7 with muscle spasm C4-C5 small posterior disc protrusion (wholly sensory neurological manifestation in the left hand) from July 11, 2016; and (2) a 10 percent evaluation was assigned for right knee patellar tendinitis degenerative joint disease from November 6, 1992; a 100 percent evaluation was assigned from June 8, 2017, under 38 C.F.R. § 4.30; and a 10 percent evaluation was assigned from August 1, 2017. These staged ratings do not represent the maximum disability ratings assignable for these disabilities, and the Veteran has not indicated that the current staged ratings are the maximum he is seeking. Because higher ratings are available, and because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the claims for a higher rating, as reflected on the title page, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). In written correspondence dated in November 2004, the Veteran withdrew his prior request to provide testimony before a Veterans Law Judge at a hearing at the RO. The case was remanded by the Board in December 2007, August 2010, and April 2017. The Veteran has been awarded a total disability rating based on individual unemployability due to service-connected disability (TDIU), and that issue is not on appeal before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action is required. REMAND After conducting a further review of this matter, the Board finds that additional evidentiary development is warranted before a final decision may be reached. Specifically, new VA examinations are needed to address the Veteran's functional limitations during flare-ups. The Board previously remanded this matter in April 2017 to obtain new VA examinations pursuant to Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Accordingly, upon remand, VA examinations were conducted in June 2017. According to the June 2017 VA examinations, the Veteran had flare-ups of pain in his neck and right knee. The examinations were not conducted during a flare-up, and the VA examiners did not estimate the loss of function during flare-ups. Rather, the VA examiners found that because the Veteran was not having a flare at the time of the examinations, it would be only with resort to mere speculation to report the additional limitation of motion due to pain during a flare at that time. In situations where an examination is not conducted during a flare-up, a VA examiner should estimate functional loss based on the Veteran's descriptions of his additional loss of function during flare-ups, gleaned from his medical records, or discerned other sources available to the examiner. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced. Id. Accordingly here, upon remand, if the examination is not conducted during a flare-up, the VA examiner will be asked to estimate functional loss during flare-ups based on the Veteran's descriptions of his additional loss of function during flare-ups, gleaned from his medical records, or discerned other sources available to the examiner. See Sharp, 29 Vet. App. at 35-36. Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced during flares. Id. Although the neurologic disabilities are not necessarily subject to the same considerations under Sharp, those disabilities are nonetheless intertwined with the remanded cervical spine issue. As such, the claims must be remanded together. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); cf Todd v. McDonald, 27 Vet. App. 79 (2014). The Board has also taken notice of the arguments of the Veteran's representative set forth in a December 2017 appellate brief. Specifically, the representative argued that a remand was needed to get VA medical records from the Lake Baldwin VA outpatient clinic. According to the representative, the Veteran identified these records upon remand, but the RO did not obtain them. Pursuant to the representative's arguments, the Board has reviewed the VA medical records obtained since the last remand and finds that the Lake Baldwin records have been obtained. They are included with the records from the Orlando VA medical center. As such, there was substantial compliance with the Board's remand directive to this extent. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). Nonetheless, to the extent additional VA medical records exist, they should be obtained upon remand. The representative also argued that the Veteran was not sent the applicable notice letters pursuant to the Board's remand. To the extent this matter is again being remanded, the Board finds that any deficiency in this regard will be cured by the action taken upon the current remand. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he submit or authorize VA to obtain all private (non-VA) health care providers who may have additional records pertinent to the remanded claims. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Obtain all outstanding VA treatment records, including, but not limited to treatment at the Lake Baldwin outpatient clinic. The request should include non-electronic and/or archived paper records that have been scanned into the VA electronic health record. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After completing all development set forth in paragraphs 1-2 above, arrange for the Veteran to undergo a VA examination to evaluate the severity of his service-connected cervical spine, neurologic, and right knee disabilities. Accordingly, the examiner is asked to review all relevant records and conduct a clinical evaluation. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran's cervical spine, neurologic, and right knee disabilities conditions. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Accordingly, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition, including all associated neurologic manifestations. Please also describe all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner should ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner should estimate the functional loss due to flares based on all the evidence of record. If for any reason 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. Please articulate the reasoning underpinning all medical findings. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 4. After completing all actions set forth in paragraphs 1-3, plus any further action needed as a consequence of the development completed in paragraphs 1-3 above, readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 claim must be afforded expeditious treatment. The law requires that all claims 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 (2017). _________________________________________________ Nathaniel J. Doan 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).