Citation Nr: 20022046 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 11-00 818 DATE: March 30, 2020 REMANDED Entitlement to service connection for a bilateral shoulder disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disorder is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disorder is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2005 to January 2006 and from March 2006 to September 2006, with additional service in the Army Reserves and periods of active duty for training (ACDUTRA). In May 2016, the Board, in pertinent part, denied increased evaluations for the Veteran’s bilateral knee degenerative joint disease. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2017, the Court issued an Order that vacated the Board’s May 2017 decision with respect to the increased rating claim for bilateral knees and remanded the matters on appeal for adjudication consistent with the instructions outlined in a March 2017 Joint Motion for Partial Remand (JMPR) by the parties. Thereafter, in December 2018, the Board most recently remanded the claims for increased ratings for the bilateral knees, service connection for a right hip disorder, and entitlement to a TDIU for additional development. 1. Entitlement to service connection for a bilateral shoulder disorder, cervical spine disorder, and lumbar spine disorder are remanded. The evidence reflects current shoulder, back, and neck problems. See April 2018 VA Treatment records. Additionally, the Veteran has indicated that these problems may be secondary to her service-connected disabilities and/or may be related to active duty service. See October 2018 VA Form 9. Significantly, the Veteran’s service treatment records (STRs) show that she had shoulder, back, and neck pain during active duty service. See July 2015 STRs. As the Veteran has not been afforded a VA examination for these claims, the Board finds that the low threshold of McLendon has been met. As such, remand is warranted for VA examinations consistent with the directives herein. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for a right hip disorder and entitlement to initial ratings for left and right knee disorders are remanded. As referenced above, in December 2018, the Board remanded the Veteran’s claims for service connection for a right hip disorder and increased ratings for the bilateral knees in order to obtain VA examinations. To comply with the Board’s remand, the Veteran was scheduled for qualified VA examinations to take place on June 19, 2019. The Veteran missed these examinations and was subsequently rescheduled for VA examinations. Thereafter, the Veteran attempted to reschedule the appointments because her husband was in the hospital. See January 2020 Affidavit. However, she was unable to be rescheduled more than 30 days out and it was noted that she would call when she was ready. See October 2019 Exam Details. Since then, she has submitted a statement requesting that she be rescheduled for VA examinations. See January 2020 Affidavit. Based on the foregoing, the Board finds that the Veteran should be afforded another opportunity to appear for VA examinations in connection with her claims for service connection for a right hip disorder and increased ratings for the bilateral knees. The Veteran is advised to appear for and participate in the scheduled VA examinations, as failure to do so may result in denial of the claims. 38 C.F.R. § 3.655. 3. Entitlement to a TDIU to include on an extraschedular basis is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran’s service-connected disabilities on her ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran’s claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran’s claimed bilateral shoulder disorder, cervical spine disorder, lumbar spine disorder, and right hip disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) The examiner should provide diagnoses for any current bilateral shoulder disorder, cervical spine disorder, lumbar spine disorder, and/or right hip disorder. In rendering such diagnoses, the examiner is reminded that pain that causes functional impairment of earning capacity may constitute a disability even if there is no formal diagnosis. b) The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed bilateral shoulder disability, cervical spine disability, lumbar spine disability, and/or right hip disability is related to her active duty service. In rendering the above opinions, the VA examiner must specifically consider and discuss: i) the STRs from April 2006 showing neck spasms, shoulder pain, and treatment with Flexeril; ii) the STRs from May 2006 showing shoulder/back pain; iii) the STRs from August 2008 showing right hip pain; iv) the May 2010 VA MRI of the lumbar spine with evidence of minimal disc bulge at L3 without stenosis; and v) the September 2017 CT scan of the cervical spine showing moderate to marked degenerative changes c) The examiner should also opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed bilateral shoulder disability, cervical spine disability, lumbar spine disability, and/or right hip disability was caused or aggravated by her service-connected disabilities. Aggravation in this context is defined as any increase in disability. In rendering the above opinion, the examiner must specifically consider and discuss the Veteran’s contentions that she favors her right hip due to her left hip disorder. See April 2017 VA Examination report. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and severity of the Veteran’s service-connected left and right knee disorders. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to describe fully the current severity of the Veteran’s disorders. In addition, for each knee the examiner should address the following: a) The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and lack of coordination present. b) The examiner should state whether the examination is taking place during a flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the impairment associated with flare-up episodes or after repetitive use over time, to include: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or the extent of functional limitations. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited range of motion caused by functional loss during a flare-up or after repeated use over time. If rendering this opinion is not possible, the clinician must provide an adequate explanation as to why. c) Range of motion testing must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges, if possible, obtain range of motion of the opposite undamaged joint. If such are not applicable, the examiner should state such along with an explanation. d) The examiner should also comment on the functional impairment caused by the Veteran’s service connected left and right knee disorders. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, 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.