Citation Nr: 20007870 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 15-14 407A DATE: January 30, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent for lumbar spondylosis is remanded. Entitlement to a disability rating in excess of 10 percent for residuals of a right shoulder dislocation is remanded. Entitlement to a disability rating excess 10 percent cervical spine spondylosis and degenerative disc disease prior to February 4, 2016 and in excess of 30 percent thereafter is remanded. Entitlement to a disability rating in excess of 10 percent for right knee degenerative arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for traumatic brain injury (TBI) is remanded. Entitlement to a disability rating in excess of 30 percent for migraines is remanded. Entitlement to a disability rating in excess of 20 percent for seizure disorder with memory loss is remanded. Entitlement to a compensable disability rating for left arm tennis elbow is remanded. Entitlement to a total disability based on individual unemployability due to service-connected disability (TDIU) prior to August 11, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1975 to November 1975 and from December 1975 to May 1996. This matter comes before the Board of Veterans Appeals’ (Board) from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board denied the Veteran’s claim for entitlement to a disability rating in excess of 10 percent right knee arthritis; 10 percent for lumbar spondylosis; 10 percent for residuals of a right shoulder dislocation; 10 percent for cervical spine spondylosis prior to February 4, 2016 and granted a 30 percent rating thereafter. In March 2019, the U.S. Court of Appeals for Veterans Claims (Court) vacated the July 2018 Board decision pursuant to a February 2019 Joint Motion for Remand (JMR). The Board’s July 2018 decision declined to assert jurisdiction over the claim for TDIU prior to August 11, 2015. The February 2019 JMR found the Board erred when it did not accept jurisdiction over the TDIU claim. Therefore, the claim for entitlement to a TDIU prior to August 11, 2015 is before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to a disability rating in excess of 10 percent for right knee degenerative arthritis; entitlement to a disability rating in excess of 10 percent for traumatic brain injury; entitlement to a disability rating in excess of 30 percent for migraines; entitlement to a disability rating in excess of 20 percent for seizure disorder with memory loss; and entitlement to a compensable disability rating for left arm tennis elbow were merged into this appeal. 1. Increased ratings for service-connected musculoskeletal disabilities The Veteran contends his service-connected cervical spine spondylosis, lumbar spondylosis, right knee degenerative arthritis, residuals of a right shoulder dislocation, and left arm tennis elbow are more severe than currently rated. A July 2018 Board decision denied the Veteran’s claims for increased ratings for his right knee, lumbar, and shoulder disability. The July 2018 Board decision increased the Veteran’s cervical spine disability to 30 percent effective February 4, 2016. The February 2019 JMR indicated that the Board erred when it relied on an inadequate February 2016 VA examination report. Specifically, the February 2016 examination did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner declined to offer a description of functional loss in terms of range of motion during a flare-up. The examiner stated that an opinion could not be provided without resort to speculation, but the examiner did not provide an adequate explanation to why an opinion could not be provided. The Board notes that February 2019 JMR did not address the Veteran’s claim for a compensable disability rating for left arm tennis elbow which was not before the Court at the time. However, the Board notes that the most recent elbow examination was conducted in February 2016 at the same time as the rest of the Veteran’s musculoskeletal examinations were conducted. The Board finds that’s February 2016 VA examination addressing the Veteran’s left elbow is also inadequate for the same reasoning as discussed above. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Thus, the Board finds a remand is required in order to afford the Veteran adequate examinations for his spine, right knee and right shoulder as well as his left elbow. 2. Increased ratings for service-connected for TBI, seizures, and migraines The Veteran contends his service-connected for TBI, seizures, and migraines are more severe than currently rated. In a June 2016 vocational assessment, a vocational expert noted the Veteran’s residuals of TBI, seizures, and migraines had increased in severity since the Veteran was last examined by VA in February 2016. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his TBI, seizures, and migraine disabilities. 3. TDIU prior to August 11, 2015 The February 2019 JMR found that the July 2018 Board decision erred when it did not adjudicate the TDIU claim prior to August 11, 2015. As such, the issue is before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds the TDIU claim must be remanded. A decision on the increased rating claims for the spine, right shoulder, right knee, left elbow, TBI, seizures, and migraines could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his lumbar spine spondylosis. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due lumbar spine spondylosis alone and discuss the effect of the Veteran’s lumbar spine spondylosis on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 2. Schedule the Veteran for an examination of the current severity of his cervical spine spondylosis with degenerative disc disease. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to cervical spine spondylosis alone and discuss the effect of the Veteran’s cervical spine spondylosis on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 3. Schedule the Veteran for an examination of the current severity of his right knee arthritis. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to right knee arthritis alone and discuss the effect of the Veteran’s right knee arthritis on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 4. Schedule the Veteran for an examination of the current severity of his right shoulder disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to right shoulder disability alone and discuss the effect of the Veteran’s right shoulder disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 5. Schedule the Veteran for an examination of the current severity of his left elbow disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left elbow disability alone and discuss the effect of the Veteran’s left elbow disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TBI. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected seizures. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected migraines. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.