Citation Nr: 21002399 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-40 632A DATE: January 13, 2021 REMANDED The appeal as to the claim of entitlement to an evaluation in excess of 10 percent for service-connected left knee disorder is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 10 percent for service-connected degenerative arthritis of the spine with intervertebral disc syndrome (previously rated as thoracic spine disorder) prior to January 4, 2017, and in excess of 20 percent since January 4, 2017, is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 10 percent for service-connected left shoulder disorder prior to December 15, 2016, and in excess of 20 percent since December 15, 2016, is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 20 percent for service-connected right lower extremity radiculopathy disorder is remanded. The appeal as to the claim of entitlement to a compensable evaluation for service-connected hypertension disorder is remanded. The appeal as to the claim of entitlement to a total disability evaluation based upon individual unemployability (TDIU), due to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from August 1979 to August 1982. He had additional active service in the United States Marine Corps from October 1986 to October 2003. His service was under honorable conditions. These matters are on appeal from a May 2014 rating decision. In a February 2017 rating decision, the AOJ increased the evaluation for the service-connected degenerative arthritis of the spine with intervertebral disc syndrome from 10 to 20 percent, effective January 4, 2017, and the rating for the service-connected left shoulder disorder from 10 to 20 percent, effective December 15, 2016. As this is not the maximum benefit available, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In multiple statements, the Veteran raised an informal claim of entitlement to a TDIU due to his service-connected disabilities. The issue of whether entitlement to a TDIU is warranted as a result of that disability is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues are as noted on the title page. In July 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing has been prepared and associated with the evidence of record. 1. Entitlement to an evaluation in excess of 10 percent for service-connected left knee disorder. See argument Below at 5 2. Entitlement to an evaluation in excess of 10 percent for service-connected degenerative arthritis of the spine with intervertebral disc syndrome (previously rated as thoracic spine disorder) prior to January 4, 2017, and in excess of 20 percent since January 4, 2017. See argument Below at 5 3. Entitlement to an evaluation in excess of 10 percent for service-connected left shoulder disorder prior to December 15, 2016, and in excess of 20 percent since December 15, 2016. See argument Below at 5 4. Entitlement to an evaluation in excess of 20 percent for service-connected right lower extremity radiculopathy disorder. See argument Below at 5 5. Entitlement to a compensable evaluation for service-connected hypertension disorder. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this regard, the Board notes that the Veteran was most recently afforded a VA examination to assess the severity of his service-connected left knee, and hypertension, in May 2014, right lower extremity radiculopathy in January 2017, and for his left shoulder and spine in June 2018. With respect to his left knee, right lower extremity radiculopathy, left shoulder, and lumbar spine disorders, the Veteran testified that he experienced symptoms of increased pain, decreased range of motion, instability, and weakness. In addition, he testified that his right lower extremity radiculopathy disorder is often incapacitating, and when he walks, it is with the use of a cane. Similarly, with respect to hypertension, the Veteran testified that this disability worsened; specifically, that he experienced increased diastolic pressure and takes prescribed medication. In light of the foregoing, more contemporaneous examinations are warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected left knee, right lower extremity radiculopathy, left shoulder, spine, and hypertension disabilities. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). 6. Entitlement to a TDIU due to service-connected disabilities. Finally, since the Veteran’s claim for increased ratings and his claim of entitlement to a TDIU, relies in part on his disability ratings, these issues cannot be addressed until the above development has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely ties together that a final Board decision cannot be rendered unless both are adjudicated). Further, development to obtain any outstanding medical records pertinent to the Veteran’s claims should be completed. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA outpatient treatment records dated from July 2018, to the present, and any private treatment records identified by the Veteran. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected left knee disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the left knee disability, as well as information required for rating purposes, to include the results of range of motion testing for pain on both active and passive motion and on weight-bearing and nonweight-bearing. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible, in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 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. 3. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected lumbar spine disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the lumbar spine disability, as well as information required for rating purposes, to include the results of range of motion testing for pain on both active and passive motion and on weight-bearing and nonweight-bearing. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible, in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 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. 4. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected left shoulder disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the left shoulder disability, as well as information required for rating purposes, to include the results of range of motion testing for pain on both active and passive motion and on weight-bearing and nonweight-bearing. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible, in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 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. 5. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected right lower extremity radiculopathy disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the right lower extremity radiculopathy disability, as well as information required for rating purposes, to include the results of range of motion testing for pain on both active and passive motion and on weight-bearing and nonweight-bearing. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible, in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 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. 6. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected hypertension disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the hypertension disability, as well as information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 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. 7. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 8. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, 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.