Citation Nr: 21002294 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-49 057 DATE: January 13, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to a rating in excess of 40 percent for lumbar myositis (back condition) is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy associated with lumbar myositis (left lower extremity radiculopathy) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on housebound status is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1977 to February 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in July 2019. The issues of entitlement to a TDIU and SMC have been raised by the record and are part and parcel of the Veteran’s increased rating claims before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009); Akles v. Derwinski, 1 Vet. App. 118 (1991). 1. Entitlement to service connection for tinnitus is remanded. The Board notes that the Veteran has asserted that he served in the artillery during service. He also said he was exposed to the sound of M-16 fire for 7 to 8 hours a day and it was “very loud.” The Board notes that the only DD-214 in the file to confirm the Veteran’s military occupational specialty (MOS) is entirely illegible. Additionally, the Veteran’s personnel documents currently associated with the claims file are also limited and do not indicate any MOS. As the circumstances of the Veteran’s service are significant to the resolution of his tinnitus claim, remand is necessary to procure a legible DD-214 and any other outstanding personnel records. 2. Entitlement to a rating in excess of 40 percent for lumbar myositis (back condition and entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy associated with lumbar myositis (left lower extremity radiculopathy) are remanded. Pursuant to the July 2019 Board remand, the RO requested that a VA examination be obtained to determine the current severity of the Veteran’s back condition and left lower extremity. In a September 2020 VA opinion, the examiner noted that due to the current COVID-19 pandemic, an examination could not be scheduled in person. The examiner therefore only reviewed the records. The Board notes that information that would have been helpful for adjudicating this claim was not obtained; namely, range of motion, active and passive range of motion, pain on weight bearing and non-weight bearing, functional loss and flare ups, and level of severity of the radiculopathy. Without this information, it would be difficult to accurately adjudicate the Veteran’s claim. Therefore, on remand, an additional attempt should be made to schedule a VA examination to determine the current severity. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 pandemic and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) and entitlement to special monthly compensation (SMC) based on housebound status are remanded. The issues of TDIU and SMC are inextricably intertwined with the above issues on appeal. The matters are REMANDED for the following actions: 1. Attempt to obtain, through all indicated and appropriate sources, the Veteran’s personnel records, including a legible DD-214. All efforts to obtain these records should be documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file and the Veteran must be notified. 2. Then, schedule appropriate VA examinations for the Veteran’s back condition and left lower extremity radiculopathy to determine the current severity of these conditions. The claims file and a copy of this remand must be made available for review. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also 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 Veteran’s back and left lower extremity radiculopathy conditions alone and discuss the effect of the Veteran’s back and left lower extremity radiculopathy condition 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 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). A clear rationale must be provided for all opinions expressed. The examiner must consider the Veteran’s lay statements. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. (Continued on the next page)   The Board notes that due to the COVID-19 pandemic, it may be difficult to schedule VA examinations. The Veteran should be afforded the opportunity to postpone his examination until such time as it can be scheduled. Alternatively, if appropriate, the RO may schedule a telemed examination. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.