Citation Nr: 21065186 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 14-38 386 DATE: October 25, 2021 REMANDED Entitlement to separate compensable ratings for rheumatoid arthritis of the cervical spine, bilateral shoulders, and bilateral wrists is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from November 1988 to November 1993 including service in Southwest Asia. These matters come before the Board of Veteran's Appeals (Board) on appeal from an August 2012 rating decision by the Regional Office (RO) that denied entitlement to an increased rating for rheumatoid arthritis. See Form 21-526b, August 2011. At the time of the August 2012 rating decision on appeal, the Veteran's rheumatoid arthritis, multiple joints, was assigned a single 10 percent rating (for all joints). An August 2015 rating decision effectively granted entitlement to a higher rating for the Veteran's rheumatoid arthritis, multiple joints, by rating each of the bilateral elbows, bilateral knees, and bilateral feet separately with the bilateral elbows and bilateral knees each awarded 10 percent ratings, and the bilateral feet each awarded noncompensable ratings. An August 2017 rating decision granted higher 10 percent ratings for the rheumatoid arthritis of the bilateral feet (each). A March 2021 Board decision granted earlier effective dates of August 26, 2011, for each of the separate 10 percent ratings for the rheumatoid arthritis of the bilateral elbows, bilateral knees, and bilateral feet. The March 2021 Board decision also remanded the issue of entitlement to separate compensable ratings for the Veteran's rheumatoid arthritis of the cervical spine, bilateral shoulders, and bilateral wrists, and entitlement to a TDIU, for further development. These matters are now returned to the Board for further appellate review. The issue of entitlement to a TDIU is part and parcel to the increased rating claim on appeal herein. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Correspondence, April 2012; NOD, September 2014. 1. Entitlement to separate compensable ratings for rheumatoid arthritis of the cervical spine, bilateral shoulders, and bilateral wrists 2. Entitlement to a TDIU The Veteran's rheumatoid arthritis, multiple joints, was initially assigned a single 10 percent rating for the disease process. In August 2011, the Veteran filed a claim for an increased rating. See Form 21-526b. He also seeks entitlement to a TDIU. See Correspondence, April 2012; NOD, September 2014. Ultimately, his claim for an increased rating for the rheumatoid arthritis was granted by recharacterizing the disability as separate 10 percent ratings for rheumatoid arthritis of the right elbow, left elbow, right knee, left knee, right foot, and left foot, all effective August 26, 2011. See Board decision, March 2021. As noted in the March 2021 Board remand, the January 1995 rating decision that awarded service connection for rheumatoid arthritis included consideration of rheumatoid arthritis of the cervical spine, bilateral shoulders, and bilateral wrists. The Board therefore remanded the increased rating claim for consideration of whether separate ratings were warranted for rheumatoid arthritis of the cervical spine, bilateral shoulders, and bilateral wrists. The Board directed that a VA examination be performed to address the current nature and severity of any rheumatoid arthritis of the cervical spine, bilateral shoulders, and bilateral wrists. Subsequently, a July 2021 VA examination was performed. The examiner noted a diagnosis of rheumatoid arthritis of the cervical spine, bilateral shoulders, and bilateral wrists. See Report at p.3 of 7 (check-the-box). The examiner did not complete disability benefits questionnaires (DBQs) for the spine, shoulders, or wrists. The examiner noted the Veteran experienced pain, stiffness, and swelling with range of motion testing of the shoulders and wrists, and later noted in the report difficulty with repetitive movements. The examiner did not, however, provide the results of range of motion testing, or address whether there was functional loss due to pain during flare-ups or with repeated use over time, and if so, describe such functional loss in terms of limitation of motion. See Report at p.3 and 6 of 7. An addendum opinion was obtained in August 2021. The examiner noted that the Veteran had full ranges of motion, active and passive. However, the Board finds the opinion to be inadequate because, as noted above, the Veteran reported pain, stiffness, and swelling with range of motion testing, but the examiner never addressed whether pain during flare-ups or with repeated use over time caused functional loss, and if so, whether it could be described in terms of limitation of motion. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Therefore, the Board finds the claim should be remanded for a new VA examination to address the current nature and severity of the Veteran's rheumatoid arthritis of the cervical spine, bilateral shoulders, and wrists. The examiner should address whether there is functional loss due to pain during flare-ups or with repeated use over time, and if so, such functional loss should be described, to the extent feasible, in terms of limitation of motion. The examination report should also include range of motion test results in active and passive, weight bearing and nonweight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016) The Board defers decision on the TDIU claim as intertwined with the increased rating claim being remanded for further development. The matters are REMANDED for the following action: 1. Obtain a new VA examination to address the current severity of the Veteran's rheumatoid arthritis of the cervical spine, bilateral shoulders, and bilateral wrists. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must comply with the requirements of 38 C.F.R. § 4.59 involving measurements of passive and active range of motion - in both weight bearing and non-weight bearing. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. Ask the VA examiner to complete separate disability benefits questionnaires (DBQs) for the cervical spine, shoulders, and wrists. If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups (if it is not feasible to quantify, please explain). Also, the examiner should ask the Veteran to describe in his own words whether there is any additional functional loss during flare-ups, and the examiner should note the frequency, duration, and severity of flare-ups. The examiner should also note whether weakened movement, excess fatigability, incoordination, or pain significantly limits functional ability with repeated use over time. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). Regarding both flare-ups and repeated use over time, please note to the VA examiner that if additional functional loss cannot be described in terms of degrees of limitation of motion, it should be clear that an examiner has "considered all procurable and assembled data before stating that an opinion cannot be reached," and "that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large." The Board may "accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed." See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). (continued next page) The examiner should also address the effect of the Veteran's rheumatoid arthritis of the cervical spine, bilateral shoulders, and bilateral wrists on his occupational functioning. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Juliano, 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.