Citation Nr: 21001932 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-03 911A DATE: January 12, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for tendonitis of the left leg (limitation of flexion) is remanded. Entitlement to an initial rating in excess of 10 percent for tendonitis of the left leg (limitation of extension) is remanded. Entitlement to an initial rating in excess of 10 percent for ganglion cyst of the left wrist is remanded. Entitlement to an initial compensable rating for scar of the left wrist is remanded. Entitlement to service connection for a spine disability, to include spinal stenosis, including as secondary to service-connected ganglion cyst of the left wrist and/or left leg disability and/or left arm disability, is remanded. Entitlement to service connection for a left foot disability, including as secondary to service-connected ganglion cyst of the left wrist and/or left leg disability, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1983 to April 1986 and from December 1990 to April 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2012, January 2015, and November 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the November 2012 rating decision, the RO granted service connection for tendonitis of the left leg and ganglion cyst of the left wrist and assigned noncompensable ratings, effective October 13, 2011, respectively, and denied service connection for a left foot disability. In the January 2015 rating decision, the RO denied service connection for spinal stenosis and a TDIU. In the November 2015 rating decision, the RO granted service connection for a left wrist scar status post ganglion cyst removal and assigned a noncompensable disability rating, effective October 13, 2011, and increased the ratings for left leg tendonitis and ganglion cyst of the left wrist to 10 percent, effective October 13, 2011, respectively. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2019. A copy of the transcript has been reviewed and associated with the claims file. These matters were before the Board in August 2019, at which time they were remanded for additional evidentiary development. While in remand status, in an August 2020 rating decision, the RO granted service connection for spastic hemiplegia of the left elbow with pain and reduced range of motion and left ulnar neuropathy and assigned a 10 percent disability rating, effective October 13, 2011. The grant of service connection constitutes a full award of the benefits sough on appeal with respect to the claim of service connection for a left arm disability. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the initial rating or effective date assigned. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Thus, this issue is not in appellate status at this juncture. Lastly, in the August 2020 rating decision, the RO granted service connection for tendonitis of the left leg (limitation of extension) and assigned a 10 percent disability rating, effective July 22, 2020. The Board finds that this issue is part and parcel with the current issue before the Board of entitlement to initial rating in excess of 10 percent for tendonitis and has restyled the issues to include both limitation of extension and limitation of flexion. 1. Entitlement to an initial rating in excess of 10 percent for tendonitis of the left leg (limitation of flexion) is remanded; 2. Entitlement to an initial rating in excess of 10 percent for tendonitis of the left leg (limitation of extension) is remanded. The Veteran testified before the undersigned VLJ in March 2019 and indicated that he sought treatment with Dr. H. every 60 days for several disabilities, including his service-connected tenonitis of the left leg. In the August 2019 remand instructions, the Board requested the RO to make two requests for the updated records from Dr. H. However, the RO only made one attempt in December 2019 to obtain the records. To date, the updated treatment records from Dr. H. have not been obtained or associated with the claims file. Accordingly, the Board finds that the RO should attempt to obtain the additional records on remand. 3. Entitlement to an initial rating in excess of 10 percent for ganglion cyst of the left wrist is remanded; 4. Entitlement to an initial compensable rating for scar of the left wrist is remanded. In the August 2019 remand instructions, the Board requested the RO to schedule the Veteran for a VA orthopedic and neurological examination with a physician to assess the severity of the Veteran’s ganglion cyst of the left wrist and associated scar. Pursuant to the Board’s remand instructions, a VA examination was performed in July 2020. However, this examination as performed by a nurse practitioner and not a physician as requested in the remand instructions. Furthermore, the examiner was unable to perform any range of motion testing given the Veteran’s pain but did not attempt to elicit this information from the records. Accordingly, the Board finds that a new VA examination, or medical opinion if appropriate, by a physician to assess the severity of the Veteran’s service-connected left wrist ganglion cyst disability and associated scar should be obtained on remand. 5. Entitlement to service connection for a spine disability, to include spinal stenosis, including as secondary to service-connected ganglion cyst of the left wrist and/or left leg disability and/or left arm disability, is remanded. The Veteran filed a claim for spinal stenosis in November 2013. Throughout the rating period on appeal, he has been diagnosed with cervical spinal stenosis and degenerative arthritis of the lumbar spine. He asserts that his spine disability was incurred in service and/or secondary to his service-connected ganglion cyst of the left wrist, left leg disability and/or left arm disability. In statements received in May and June 2014, the Veteran and his wife indicated that the pain from his left wrist disability radiated down his back and left leg, causing him to drag his left foot. Furthermore, he indicated that his pain from his left arm radiated up to his neck when he moved his arm. The Veteran’s service-treatment records reveal that he complained of neck pain in 1985 and back pain in January 1991. Pursuant to the Board’s remand instructions, a VA examination was performed in July 2020, at which time the examiner performed an examination of the back and diagnosed him with degenerative arthritis of the spine and spinal stenosis. She concluded that Veteran’s spinal stenosis was not incurred in service, given that he did not have any reports of back pain in service. After a review of the evidence, the Board finds that the July 2020 examination and opinion is insufficient to determine the present claim. In this regard, the examiner failed to discuss the Veteran’s diagnosed cervical spine disability and in-service complaints of neck and back pain. Furthermore, the examiner failed to provide an opinion as to whether the Veteran’s spine disability was secondary to his service-connected left wrist, left leg, and/or left arm disability. Accordingly, the Board finds that a new VA examination is warranted on remand in order to determine the nature and etiology of the Veteran’s spine disability. 6. Entitlement to service connection for a left foot disability, including as secondary to service-connected ganglion cyst of the left wrist and/or left leg disability is remanded. Throughout the rating period on appeal, the Veteran has been diagnosed with a left foot sprain and has had complaints of left foot pain. He asserts that his left foot disability was incurred in service and/or is secondary to his service-connected left wrist and/or left leg disability. The Veteran and his wife submitted statements in February 2012 and indicated that his left wrist disability caused pain to radiate down his wrist and into his left leg and foot, which caused him to drag his left leg and left foot. The Veteran’s service-treatment records reveal that he complained of left heel pain in March 1986. He reported pain with standing in August 1986. Pursuant to the Board’s remand instructions, a VA examination was performed in July 2020. The examiner concluded that the Veteran’s left foot disability was not incurred in service given that he did not have a diagnosed left foot disability in service. After a review of the evidence, the Board finds that the July 2020 examination is insufficient to determine the present claim. In this regard, the examiner failed to discuss the Veteran’s in-service foot complaints. Moreover, there has been no opinion as to whether the Veteran’s left foot disability is secondary to his left leg and/or left wrist disability. Accordingly, the Board finds that a new VA examination is warranted on remand in order to determine the nature and etiology of the Veteran’s left foot disability. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran submitted a TDIU application in November 2013 and indicated that he had not worked as a chef since 2011 due to his left arm and left leg disabilities. The Veteran’s July 2020 examination indicated that his left wrist disability impacted his ability to work due to his inability to lift anything with his left hand or type. Furthermore, the July 2020 examiner indicated that his left leg disability impacted his ability to work given that it would be difficult to bend down or walk long distances. The Veteran’s current combined disability rating is only 30 percent. Thus, he does not meet the threshold requirement for a TDIU at this time. Nevertheless, VA’s policy is to rate totally disabled all veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Therefore, the claim must be referred to the Director, Compensation Service if the Veteran does not meet the schedular requirements after the pending evidentiary development is conducted. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from July 2020 to the present. 2. Ask the Veteran to submit an updated release for the private treatment records from Dr. H. If the Veteran fails to furnish the necessary release for his private treatment records, he should be advised to obtain the records and submit them to VA. Document all attempts to obtain the records from Dr. H. 3. After completion of #1 and #2, schedule the Veteran for a VA examination by a physician to assess the severity of the Veteran’s service-connected left wrist ganglion cyst and associated scar. The claims file, including a copy of this remand, must be obtained and associated with the claims file on remand. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any.  Specifically, active and passive range of motion testing, as well as weight-bearing and non-weight-bearing testing, must be conducted.  If the examiner is unable to conduct this testing, he or she should explain the reasoning and attempt to elicit this information from the record and provide an estimate.     The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement.  The extent of additional limitation should be expressed in degrees.  Flare-ups have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss.  He or she should estimate the degree of lost motion during such flare-ups.  The examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner.  If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being the most confident. The examiner should also provide an opinion as to whether his service-connected left wrist disability is associated with ankylosis and, if so, whether it manifests in favorable ankylosis in 20 to 30 degrees dorsiflexion; ankylosis in any position except favorable or unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. The examiner should also discuss whether the left wrist manifests in extremely unfavorable ankylosis and, if so, rate under diagnostic code 5125. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. With regard to the Veteran’s left wrist scar, the examiner should discuss the severity of the scar, including whether it is painful and/or unstable. The examiner should discuss the impact, if any, that his left wrist disability and scar have on his ability to work. If an examination of the left wrist is unable to be performed, the examiner should explain why and provide his or her opinion based on a review of the complete record. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1 and #2, schedule the Veteran for a VA examination to determine the nature and etiology of his left foot and spine disabilities, including both the cervical and lumbar areas of the spine. The claims file, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner(s) must identify any left foot and spine disabilities, including the cervical and lumbar areas of the spine, found on examination and identified during the pendency of this claim, and respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s left foot and/or spine disability had their onset in and/or are otherwise related to his period(s) of active service? B. For any left foot disability, is it at least as likely as not (probability of at least 50 percent) that it was caused by his service-connected ganglion cyst of the left wrist and/or left leg disability? If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s left foot disability has been aggravated (any incremental increase in disability) as a result of his service-connected ganglion cyst of the left wrist and/or left leg disability? If aggravation is found, is there evidence created prior to the aggravation or between the aggravation and left foot disability that shows a baseline of his left foot disability prior to aggravation? If so, please identify. C. For any spine disability, including the lumbar and cervical areas, is it at least as likely as not (probability of at least 50 percent) that it was caused by his service-connected left wrist, left arm, and/or left leg disability? If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s spine disability has been aggravated (any incremental increase in disability) as a result of his service-connected left wrist, left arm, and/or left leg disability? If aggravation is found, is there evidence created prior to the aggravation or between the aggravation and spine disability that shows a baseline of his spine disability prior to aggravation? If so, please identify. If found to be service connected, the examiner should discuss the impact, if any, that his left foot and spine disability have on his ability to work. If an examination of the left foot and/or spine is unable to be performed, the examiner should explain why and provide his or her opinion based on a review of the complete record. The examiner must provide a comprehensive rationale for each opinion provided. The examiner should discuss the Veteran’s in-service foot, neck, and back complaints, hearing testimony, and statements contained in the file from the Veteran and his wife. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 5. After completion of numbers 1 through 4, if the Veteran does not meet the schedular requirements for entitlement to a TDIU, refer the claim to the Director, Compensation Service, and notify the Veteran and his representative of such action. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.