Citation Nr: 20009747 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-24 533 DATE: February 6, 2020 REMANDED Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) (previously rated as adjustment disorder and cognitive disorder, not otherwise specified (NOS)) is remanded. Entitlement to an initial compensable disability rating for a traumatic brain injury (TBI) is remanded. Entitlement to an initial disability rating in excess of 10 percent for thoracolumbar strain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to December 17, 2013, is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from June 1997 to November 2003, and from July 2004 to June 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As regards to the PTSD claim, by way of background, in a September 2012 rating decision, the RO initially granted service connection for adjustment disorder and cognitive disorder, not otherwise specified (NOS), assigning a 30 percent disability rating, effective June 20, 2012. In September 2013, the Veteran filed a separate claim of entitlement to service connection for PTSD. In the September 2014 rating decision currently on appeal, the RO granted service connection for PTSD (previously rated as adjustment disorder and cognitive disorder, NOS), effective September 17, 2013. The Board notes that the Veteran has been granted entitlement to a TDIU from December 17, 2013. However, as that claim must be considered part and parcel of his appeal of the initial rating for PTSD (previously rated as adjustment disorder and cognitive disorder, NOS), the matter of whether a TDIU is warranted prior to that date remains on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009), (holding that a TDIU is part of an increased rating claim when raised by the record). In December 2019, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. The issue of entitlement to service connection for bilateral lower extremity radiculopathy was raised during the December 2019 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150(a) (2018) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 19.9(b) (2018) (continuing to provide for Board referral of unadjudicated claims). REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case 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. 1. Entitlement to an initial disability rating in excess of 30 percent for PTSD (previously rated as adjustment disorder and cognitive disorder, NOS) is remanded. See Argument Below 2. Entitlement to an initial compensable disability rating for a TBI is remanded. See Argument Below 3. Entitlement to an initial disability rating in excess of 10 percent for thoracolumbar strain is remanded. The Veteran contends that he is entitled to increased disability ratings for his service-connected PTSD (previously rated as adjustment disorder and cognitive disorder, NOS), TBI, and thoracolumbar strain. Initially, a review of the claims file reveals that, following the issuance of the statement of the case (SOC) in March 2017, additional medical evidence has been associated with the Veteran’s claims file, to include voluminous VA treatment records. However, this additional, pertinent evidence has not been considered by the AOJ in conjunction with the claims currently on appeal. Thus, the AOJ must readjudicate the claims with consideration of this additional evidence. 38 C.F.R. § § 19.31, 20.1304(c). In addition, the record reflects that the Veteran was most recently afforded a VA examination for each disability in June 2014, nearly six years ago. Throughout the appeal period, the Veteran has asserted that the current severity of his service-connected disabilities is worse than what is contemplated by the current ratings. In his September 2015 notice of disagreement (NOD), the Veteran indicated that his service-connected PTSD and TBI had worsened to the point that he was in need of a caregiver to assist with activities of daily living. He further stated that, due to the pain associated with his service-connected back disability, at times, he was unable to play in the yard with his son, help his wife around the house, and carry his baby. Furthermore, during the December 2019 Board hearing, with regard to his PTSD, the Veteran testified that he suffered constant nightmares, had panic attacks, and had issues with memory. He further testified that he cannot be around people. His spouse testified that the Veteran is unable to do anything without her help, and that he is incompetent to handle his affairs. With regard to the TBI claim, the Veteran indicated that he suffers vertigo attacks where he cannot get up or move. As for his service-connected back disability, the Veteran indicated that it is difficult to bend over and pick something up off of the ground, and that his back impacts his daily activities. His spouse stated that she helped the Veteran with dressing or tying his shoes when needed. The Board finds that the testimony presented during the December 2019 Board hearing suggests that the Veteran’s symptoms of his service-connected disabilities have worsened. Thus, based on the foregoing, the Board finds that more contemporaneous examinations of the service-connected PTSD (previously rated as adjustment disorder and cognitive disorder, NOS), TBI, and thoracolumbar strain are warranted in order to ensure that the record reflects the current severity of each disability. Additionally, as regards to the Veteran’s service-connected back disability, the Board notes that, Following the June 2014 VA examination, two precedential opinions were issued by the United States Court of Appeals for Veterans Claims (Court). These opinions necessitate retroactive opinions in this case. On July 5, 2016, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia interprets 38 C.F.R. § 4.59 to establish additional requirements that must be met prior to finding that a VA examination is adequate. The June 2014 examination report does not reflect that the examiner addressed all of the Correia requirements. Specifically, the June 2014 examination report includes only active range of motion findings and does not include range of motion findings for passive range of motion. Thus, the Board finds that the June 2014 VA examination is inadequate. Furthermore, the Board notes that the Court issued another decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare (i.e., the frequency, duration, characteristics, severity, or functional loss), and such opinion cannot be based on the insufficient knowledge of the specific examiner. In this case, during the June 2014 VA examination, the Veteran reported experiencing flare-ups of the lumbar spine. The examiner indicated that there are contributing factors of pain, weakness, fatigability and/or incoordination, as well as additional limitation of functional ability of the lumbar spine during flare-ups or repeated use over time. However, the examiner did not provide an estimate of range of motion during flare-ups. Thus, the Board notes that the June 2014 VA examination regarding the Veteran’s lumbar spine disability does not comply with the requirements of Sharp. Thus, in light of the foregoing reasons, the Board cannot properly assess the functional impairment caused by the service-connected back disability. Consequently, as the previous examination report for the Veteran’s service-connected back disability does not fully satisfy the requirements of Correia, 38 C.F.R. § 4.59, and Sharp, a new examination, to include retroactive opinions, are necessary to decide the claim. Based on the foregoing, new VA examinations are warranted for the service-connected PTSD (previously rated as adjustment disorder and cognitive disorder, NOS), TBI, and thoracolumbar strain disabilities. 4. Entitlement to a TDIU, prior to December 17, 2013, is remanded. The Board further finds that the issue of the Veteran’s entitlement to a TDIU, prior to December 17, 2013, is inextricably intertwined with the claims remanded herein. Accordingly, the issue of entitlement to a TDIU must be deferred pending adjudication of the aforementioned claims. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are “inextricably intertwined” where action on one matter could have a “significant impact” on the other). Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After completing the above development, schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his service-connected PTSD (previously rated as adjustment disorder and cognitive disorder, NOS). The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner should report all signs and symptoms necessary for rating the Veteran’s disability under the General Rating Formula for Mental Disorders, including the frequency, duration, and severity of his symptomatology. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran’s disability. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. The examining physician/specialist is to be asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran’s claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). Without the requested information, the Board may have to again remand this case for this evidence. 3. Then, schedule the Veteran for a VA TBI protocol examination by an appropriate clinician to determine the current level of severity of all impairment resulting from TBI residuals, to include headaches, dizziness, loss of balance, vision impairment, and sensitivity to noise and light. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is requested to comment on the severity of the Veteran’s service-connected TBI throughout the rating period. The examiner should also discuss the effect of the Veteran’s service-connected TBI on his occupational functioning and daily activities. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. The examining physician/specialist is to be asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran’s claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). Without the requested information, the Board may have to again remand this case for this evidence. 4. Finally, schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his service-connected back disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner should conduct range of motion testing of the Veteran’s lumbar spine, expressed in degrees in active motion, passive motion, weight-bearing, and non-weight-bearing (where applicable). The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts he is unable to perform range of motion testing due to pain. 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 why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran’s ordinary activity, including his ability to work. The examiner should determine whether the Veteran’s range of motion results from the June 2014 VA examination would have been reduced if tested in both active and passive motion and in weight-bearing and non-weight-bearing. To the examiner’s best ability, the additional range of motion loss should be described in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran’s functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should also specifically interview the Veteran about the nature of the flare-ups that he reported in the June 2014 VA examination; assess this impairment during flare-ups, and provide a retroactive opinion as to any additional functional loss during flare-ups at that time, and provide an estimate of that loss in terms of degrees reduction in range of motion. The examiner is requested to comment on the severity of the Veteran’s service-connected back disability throughout the rating period. The examiner should also discuss the effect of the back disability on his occupational functioning and daily activities. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. The examining physician/specialist is to be asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran’s claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). Without the requested information, the Board may have to again remand this case for this evidence. 5. After completing all indicated development, the Veteran’s claims should be readjudicated, to include the issue of entitlement to a TDIU, prior to December 17, 2013, based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. For the issues on appeal, the SSOC should consider any new evidence received since the SOC issued in March 2017. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.