Citation Nr: 20004887 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 06-27 671 DATE: January 22, 2020 REMANDED Entitlement to an initial compensable disability rating for bilateral hearing loss prior to November 11, 2015, and in excess of 20 percent from that date and thereafter, is remanded. Entitlement to an initial compensable disability rating for a right inguinal hernia is remanded. Entitlement to an initial disability rating in excess of 10 percent for lumbar spine degenerative disc disease prior to May 18, 2016, and in excess of 20 percent from that date and thereafter, is remanded. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity sciatic radiculopathy is remanded. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity sciatic radiculopathy is remanded. Entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Marine Corps from June 1962 to April 1966, June 1973 to December 1978, and December 1978 to March 2003. These matters are before the Board of Veterans’ Appeals (Board) on appeal from March 2004 and June 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the RO awarded a 20 percent disability rating for the Veteran’s bilateral hearing loss, effective November 11, 2015. In June 2016, the RO awarded a 20 percent disability rating for the Veteran’s lumbar spine degenerative disc disease, effective May 18, 2016. Because the RO did not assign the maximum disability ratings possible, the appeals for higher disability evaluations remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In a June 2016 rating decision, the RO granted service connection for right and left lower extremity sciatic nerve radiculopathy with a disability rating of 10 percent effective May 18, 2016. With respect to a total disability rating based on individual unemployability (TDIU), the Veteran has appealed for a higher schedular rating for his bilateral hearing loss, and, in light most favorable to the Veteran, the record has raised the issue of interference with his employment due to his service-connected disabilities. See Informal Hearing Presentation, dated December 2019; VA Examination, dated June 2019. Thus, the issue of the Veteran's entitlement to a TDIU exists. Rice v. Shinseki, 22 Vet. App. 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted). The Board has therefore added the issue of TDIU to the title page to reflect the Board's jurisdiction over this matter. This case was previously before the Board in September 2009 and February 2018. In September 2009, the case was remanded, in relevant part, to obtain outstanding medical records and obtain VA examinations to determine the nature and severity of the Veteran’s lumbar spine disability, bilateral hearing loss, and right inguinal hernia examination. In February 2018, the case was remanded to obtain a VA examination to determine the nature and severity of the Veteran’s right inguinal hernia; request that a VA audiologist interpret the private audiogram graph from November 2015; obtain a translation of the January 2004 VA audiometry for hearing loss; notify the Veteran of the rating criteria in effect prior to September 26, 2003, for orthopedic and neurological manifestations of low back disabilities; and readjudicate all issues remaining on appeal. The case has been returned to the Board for appellate consideration. As discussed below, the Board unfortunately finds that another remand is necessary for further development. 1. Entitlement to an initial compensable disability rating for bilateral hearing loss prior to November 11, 2015, and in excess of 20 percent from that date and thereafter, is remanded. With regard to the Veteran’s claims for increased disability ratings for bilateral hearing loss, in addition to all other claims in this decision, there is evidence that there may be outstanding treatment records. The Veteran reported to a VA treatment provider in April 2014 that, while it was indicated for him to follow-up with his providers in one year, there was no indication for him to return “anytime soon” as he was receiving excellent healthcare in Thailand. There is further evidence of his receipt of healthcare while he was living in Thailand, as the Veteran, himself, submitted selected medical records from treatment providers in Thailand. See Private Treatment Records, dated November 2015. It does not appear, however, that these records are complete. The Veteran also reported, during a visit with VA treatment providers in 2010, that he had received medical care in 2009 while in Germany. There is evidence of some German medical records in the electronic claims file, notably treatment for his hearing loss and tinnitus, but not in reference to the lumbar spine, for which the Veteran reported treatment. See VA Treatment Records, dated December 2010. Moreover, the claims file indicates that the Veteran currently resides in the United States and is receiving treatment through VA medical centers. See Board Communication, dated December 2019; VA Treatment Records, dated June 2017, May 2017. The most recent VA treatment records associated with the file, however, are dated June 2017. The treatment records, as outlined above, may have relevant information for all of the issues on appeal. In light of the above, upon remand, the Agency of Original Jurisdiction (AOJ) should take all appropriate steps to obtain and associate with the case file all outstanding private treatment records, with all necessary assistance from the Veteran, and all outstanding VA medical treatment records. 38 C.F.R. § 3.159(c)(1)-(2). 2. Entitlement to an initial compensable disability rating for a right inguinal hernia is remanded. The Veteran underwent a VA examination to determine the nature and severity of his right inguinal hernia in June 2019. The examiner noted that the Veteran did not have evidence of a current right inguinal hernia. The history on the exam noted that the Veteran had right inguinal hernia repair performed in 1997, 1999, and 2008. There are no records in the file, however, detailing the treatment or surgical intervention of the Veteran’s right inguinal hernia repair in 2008. As such, upon remand, the AOJ should take all necessary steps to obtain these records and associate them with the claims file. Id. VA may not substitute its own judgment for that of a medical professional’s in determining the nature and severity of a Veteran’s disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). After appropriate development, to include obtaining any outstanding medical records, the AOJ should obtain a supplemental VA opinion to determine whether the Veteran’s right inguinal hernia is readily recurrent and whether, at any point during the period on appeal, the Veteran’s right inguinal hernia has been readily reducible. 38 C.F.R. § 4.114, Diagnostic Code 7339. 3. Entitlement to an initial disability rating in excess of 10 percent for lumbar spine degenerative disc disease prior to May 18, 2016, and in excess of 20 percent from that date and thereafter, is remanded. The Veteran underwent a VA examination to determine the nature and severity of his lumbar spine disability in May 2016. The examiner noted that the pain had pain that had persisted over the years with flare-ups. The examiner opined that the Veteran’s estimated lumbar spine flexion range of motion during flare-ups was 40 degrees. The examiner went on to state, however, that the Veteran was unable to bend during flare-ups. The examiner did not explain this apparent contradiction of reported range of motion during flare-ups. As such, upon remand, the Veteran should be afforded a new VA examination to determine the nature and severity of his lumbar spine degenerative disc disease. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In the February 2018 remand, the Board directed the AOJ to notify the Veteran of the rating criteria in effect prior to September 26, 2003, for orthopedic and neurological manifestations of low back disabilities. While the change of rating criteria for lumbar spine disabilities prior to September 23, 2016, were referenced in the November 2019 supplemental statement of the case (SSOC) the specific criteria for the ratings prior to September 23, 2016, were not specifically outlined, nor was the Veteran so notified. See Informal Hearing Presentation, dated December 2019. As such, upon remand, the AOJ should afford the Veteran the specific rating criteria for lumbar spine disabilities prior to September 26, 2003. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with remand orders). 4. Entitlement to initial disability ratings in excess of 10 percent, each, for right and left lower extremity sciatic radiculopathy is remanded. The Veteran underwent a VA examination to determine the nature, etiology, and severity of his right and left lower extremity sciatic radiculopathy in May 2016, concurrent with the examination to determine the nature and etiology of his lumbar spine disability. The examiner opined that the Veteran had mild sciatic nerve radiculopathy of the right and left lower extremity. The examiner noted mild numbness and pain in bilateral lower extremities, but did not specifically quantify the Veteran’s decreased ability to extend his toes. Moreover, this decreased mobility was not specifically addressed in the examiner’s opinion finding the Veteran’s bilateral sciatic nerve radiculopathy symptoms to be mild in nature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the above, the Veteran should be afforded a new VA examination, upon remand, to determine the nature and severity of his bilateral lower extremity sciatic nerve radiculopathy. 5. Entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU) is remanded. The Veteran’s claim for a TDIU is inextricably intertwined with the issues of entitlement to an increased disability rating for bilateral hearing loss, right inguinal hernia, lumbar spine degenerative disc disease, right lower extremity radiculopathy, and left lower extremity radiculopathy, which are being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to issue cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that the final decision on one issue cannot be rendered until a decision on the other issues has been rendered). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the Veteran's service-connected disabilities during the period on appeal. Specific attention should be paid to treatment records from the Veteran’s time in residence in Thailand and Germany, as well as the records detailing the treatment or surgical intervention of the Veteran’s right inguinal hernia repair in 2008. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. All attempts to obtain these records, to include all communication with the Veteran, providers, and any negative communication or failure to respond, should be clearly indicated in the claims file. 2. The AOJ should notify the Veteran of the rating criteria in effect prior to September 26, 2003, for orthopedic and neurological manifestations of low back disabilities. 3. If and only if the development above yields evidence that so indicates its necessity, schedule the Veteran for a VA examination to determine the nature and severity of his bilateral hearing loss. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. 4. After the completing the development outlined above, obtain a VA opinion to determine the severity of the Veteran’s service-connected right inguinal hernia and residuals throughout the period on appeal and report all signs and symptoms necessary for rating the disorder. Specifically, the examiner should determine whether the Veteran’s right inguinal hernia is readily recurrent and whether, at any point during the period on appeal, his right inguinal hernia has been readily reducible. The examiner should also opine as to the size of the Veteran’s right inguinal hernia; whether it was small or large, and had any changes thereof, throughout the appeal period. If there is a worsening or improvement of the Veteran’s right inguinal hernia symptoms during the period on appeal, as evidenced by the record or any assessment of the examiner, this should be specified in the addendum opinion, with dates of worsening and/or improvement. A copy of the claims file should be afforded to the examiner, to include a copy of this remand, and reviewed. Should the provider find it necessary, a physical examination should be scheduled. All pertinent symptomatology and findings must be reported in detail. In this opinion, the examiner should consider lay statements of the Veteran, including those made to the Board or to other providers as contained in the medical evidence of record. If there is evidence that indicates severity in excess of that which is opined by the examiner, the examiner should specifically address this conflicting evidence in the opinion. A thorough rationale for the opinion would be helpful to the Board. 5. Schedule the Veteran for a VA examination to determine the severity of his service-connected lumbar spine degenerative disc disease, right lower extremity sciatic nerve radiculopathy, and left lower extremity sciatic nerve radiculopathy, and report all signs and symptoms necessary for rating the disorder. The claims folder, to include this remand, must be thoroughly reviewed by the examiner in connection with the examination. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors, including additional loss of range of motion. The examiner should specifically discuss any additional functional impairment that the Veteran experiences during a flare-up or upon repetitive motion. The examiner's attention is directed to the Veteran's subjective complaints and descriptors of functional limitations during flare-ups, both as expressed during the examination and in the evidence of record. The examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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 so in the report. The examiner should also address the severity and functional deficits associated with any neurological symptomatology associated with the Veteran's lumbar spine disability, specifically the severity and specific symptomatology of his left and right lower extremity radiculopathy. All signs, to include sensation, pain, and neurologically caused muscle weakness should be addressed in the opinion. Any additional neurological deficits should be fully addressed, including any causal relationship to the Veteran's thoracolumbar degenerative disc disease. In this opinion, the examiner should consider lay statements of the Veteran, both those made to the examiner and those made to other providers as contained in the medical evidence of record. If there is evidence that indicates severity in excess of that which is opined by the examiner, the examiner should specifically address this conflicting evidence in the opinion. If the examiner finds that the Veteran has multiple neurological diagnoses, specifically those attributable to nonservice-connected disabilities, the examiner should indicate which symptoms are attributable to each diagnosis. If this is not possible, the examiner should clearly indicate this. If there is a worsening or improvement of the Veteran's lumbar spine, right sciatic nerve radiculopathy, or left sciatic nerve radiculopathy symptoms during the period on appeal, as evidenced by the record or the assessment of the examiner, this should be specified in the examination, with dates of worsening and/or improvement. A thorough rationale for the opinion would be helpful to the Board. 6. Readjudicate all issues on appeal, to include entitlement to a TDIU. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.