Citation Nr: 21000924 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 08-32 668 DATE: January 6, 2021 REMANDED Entitlement to an initial rating higher than 30 percent for service-connected bronchial asthma is remanded. Entitlement to an initial rating higher than 20 percent for service-connected chronic lumbosacral paraspinal spasms is remanded. Entitlement to an initial rating higher than 10 percent for service-connected instability of the left knee is remanded. Entitlement to an initial rating higher than 10 percent for service-connected left knee meniscal tear prior to June 7, 2016, and to a rating in excess of 20 percent from June 7, 2016, forward, is remanded. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU), prior to November 1, 2013, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 2001 to December 2006. In July 2014, the Veteran had a personal hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board); a transcript is of record. Most recently, in February 2020, the Board remanded these claims to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. As to each of the claims for increased initial ratings for the Veteran’s lumbar spine and left knee disabilities, the Board, in its February 2020 remand, found that the RO, in its November 2019 Supplemental Statement of the Case (SSOC), did not address or consider relevant evidence of record. The November 2019 SSOC failed to address or consider the June 2016 Disability Benefits Questionnaires (DBQs) pertaining to her bronchial asthma, lumbar spine, and left knee disabilities, and the May 2018 DBQ pertaining to her bronchial asthma. The RO, in its November 2019 SSOC, also did not address or consider VA treatment records dated after October 2014, of record at the time of the November 2019 SSOC. The Board thus directed the RO to readjudicate these issues, after obtaining any outstanding VA treatment records or any identified and authorized outstanding relevant private treatment records, and after obtaining adequate VA examinations of the Veteran’s lumbar spine and left knee disabilities. Resultant to the February 2020 remand, the RO obtained and associated with the claims file the Veteran’s updated VA treatment records; he did not respond to a February 2020 letter requesting that he identify and authorize VA to obtain any outstanding relevant private treatment records. The RO issued a September 2020 SSOC listing as evidence only the Veteran’s updated VA treatment records and September 2020 DBQs, examinations pertaining to her lumbar spine and left knee disabilities only, and thus did not address or consider the June 2016 and May 2018 DBQs. Also as to each of the claims remanded herein, including her claim for a TDIU, the Veteran’s representative, in his November 2020 Written Brief Presentation, asserted that a SOC, or in this case, an SSOC, must contain a summary of the evidence in the case relating to the issue or issues with which the appellant has expressed disagreement, the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination, and the determination on each issue and the reasons for each such determination with respect to which disagreement has been expressed. 38 C.F.R. § 19.29. The Veteran’s representative asserted that the September 2020 SSOC was inadequate. Also as to each of the claims remanded herein, including her claim for a TDIU, the most recent VA treatment records available for Board review are dated in September 2020; on remand, the RO should obtain and associate with the claims file the Veteran’s updated VA treatment records. Entitlement to an initial rating higher than 30 percent for service-connected bronchial asthma is remanded. Specific to the Veteran’s claim for an increased initial rating for her bronchial asthma, the RO readjudicated such, resultant to the Board’s February 2020 remand directives, in the September 2020 SSOC. The RO readjudicated the claim in three brief paragraphs, one indicating that the claim had been remanded by the Board in February 2020, the next indicating that the VA treatment records reviewed failed to show that a higher rating was warranted, and the next providing a recitation of the relevant rating criteria. The RO did not comply with the Board’s February 2020 remand instructions to adequately readjudicate the issue. As noted above, the RO, for the second time, failed to address or consider the June 2016 and May 2018 DBQs. Further, as discussed by the Veteran’s representative in his November 2020 Written Brief Presentation, the September 2020 SSOC was inadequate, in that the RO’s rote rationale that the VA treatment records reviewed failed to show that a higher rating was warranted did not meet the criteria for an adequate SOC. Id. Indeed, another remand is required. The RO must issue an adequate SSOC as to the Veteran’s claim for an increased initial rating for her bronchial asthma that specifically addresses and considers the June 2016 and May 2018 DBQs and provides adequate reasons for any determinations made. Also, the Board notes that while no party has specifically asserted that the Veteran’s bronchial asthma has increased in severity since the May 2018 DBQ, it remains that such was conducted more than two years prior. As this remand is the second remand from the Board since the May 2018 DBQ, and as the Veteran shall be afforded new VA examinations of her lumbar spine and left knee disabilities as a result of the remand directives herein, discussed below, in order to avoid a future remand, the Board herein directs the RO to also afford the Veteran a new examination in order to determine the current severity of her bronchial asthma. Entitlement to an initial rating higher than 20 percent for service-connected chronic lumbosacral paraspinal spasms, an initial rating higher than 10 percent for service-connected instability of the left knee, and an initial rating higher than 10 percent for service-connected left knee meniscal tear prior to June 7, 2016, and to a rating in excess of 20 percent from June 7, 2016, forward, are remanded. The Board, in its February 2020 remand, also found that the June 2016 DBQs pertaining to the Veteran’s lumbar spine and left knee disabilities were inadequate as they did not comply with the requirements set forth in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board discussed that the June 2016 DBQs did not provide an estimate of the additional loss of range of motion during flare-ups, or adequately explain why such an estimate could not be provided, and did not reflect that the range of motion testing, for pain in active, passive, weight-bearing, and nonweight-bearing, required under 38 C.F.R. § 4.59 was either performed or medically contraindicated. Id. In a September 2020 DBQ of the Veteran’s left knee, he denied flare-ups of left knee symptoms; thus an estimate of the additional loss of range of motion during flare-ups was not warranted. Sharp, 29 Vet. App. 26. There was pain on active motion of the left knee, without functional loss, and pain on passive motion. There was no pain on wight-bearing or nonweight-bearing of the left knee. However, it does not appear that the examiner conducted range of motion of the left knee in passive motion or discuss why such was medically contraindicated. Correia, 28 Vet. App. 158. In a September 2020 DBQ of the Veteran’s lumbar spine, he reported flare-ups of lumbar spine symptoms, and the examiner reported that pain, weakness, fatiguability, or incoordination did not significantly limit functional ability with flare-ups, that there was no functional loss to further describe. Sharp, 29 Vet. App. 26. There was pain on active motion of the lumbar spine, without functional loss, and pain on passive motion. There was no pain on wight-bearing or nonweight-bearing of the lumbar spine. However, it does not appear that the examiner conducted range of motion of the lumbar spine in passive motion or discuss why such was medically contraindicated. Correia, 28 Vet. App. 158. The RO readjudicated the Veteran’s claims for increased initial ratings for her lumbar spine and left knee disabilities in four brief paragraphs each, one indicating that the claim had been remanded by the Board in February 2020, the next providing a brief recitation of the results of the September 2020 DBQs, the next indicating that the VA treatment records reviewed failed to show that a higher rating was warranted, and the next providing a recitation of the relevant rating criteria. The RO did not comply with the Board’s February 2020 remand instructions to adequately readjudicate the issues. As noted above, the RO, for the second time, failed to address or consider the June 2016 DBQs. Also, the RO did not provide the Veteran adequate VA examinations of her lumbar spine and left knee disabilities considering Correia. Further, as discussed by the Veteran’s representative in his November 2020 Written Brief Presentation, the September 2020 SSOC was inadequate in that the RO’s rationale that the VA treatment records reviewed failed to show that a higher rating was warranted was rote and the recitation of examination results did not show any connection to the issue being remanded. Id. Indeed, another remand is required. The RO must afford the Veteran adequate VA examinations to determine the current severity of her lumbar spine and left knee disabilities that comply with Correia and issue an adequate SSOC that specifically addresses and considers the June 2016 DBQs and provides adequate reasons for any determinations made. Entitlement to a TDIU, prior to November 1, 2013, is remanded. The appropriate ratings for the Veteran’s service-connected bronchial asthma, lumbar spine, and left knee disabilities are pending appeals and the subject of the remand herein; the current severity of such, considering any functional impairment, has not yet been adjudicated. Thus, the issue of entitlement to a TDIU is not yet ripe for adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on the resolution of the second issue). Further, as discussed by the Veteran’s representative in his November 2020 Written Brief Presentation, the September 2020 SSOC was inadequate in that the RO’s rote and cryptic rationale that the Veteran had not been found to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities did not meet the criteria for an adequate SOC. Id. Indeed, another remand is required. The RO must issue an adequate SSOC that specifically addresses and considers the evidence obtained resultant to this remand, specifically, the new VA examinations describing the functional impairment related to the Veteran’s bronchial asthma, lumbar spine, and left knee disabilities, as well as the June 2016 and May 2018 DBQs, and provides adequate reasons for any determinations made. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2020 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bronchial asthma. 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. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected chronic lumbosacral paraspinal spasms. 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. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, 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. If it is not possible to provide a specific measurement 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. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected instability of the left knee and left knee meniscal tear. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, 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. If it is not possible to provide a specific measurement 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. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Finally, the RO should readjudicate the issues on appeal, to include the issue of entitlement to a TDIU prior to November 1, 2013. If any claim is not granted, the RO should issue an appropriate supplemental statement of the case (SSOC), and give the Veteran and his representative the opportunity to respond. The SSOC must address and consider evidence obtained since the issuance of the December 2013 SSOC, including, but not limited to: (a) the VA examination reports for asthma, low back, and left knee disorders dated in June 2016 (June 2016 VA Respiratory Conditions Disability Benefits Questionnaire (DBQ); June 2016 VA Back (Thoracolumbar Spine) Conditions DBQ; June 2016 VA Knee and Lower Leg Conditions DBQ; (b) the VA examination report for asthma dated in May 2018 (see May 2018 VA Respiratory Conditions DBQ); and (c) VA treatment records dated from October 2014 forward. The case should then be returned to the Board, in order, for further appellate review. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.