Citation Nr: 21065968 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 14-37 555 DATE: October 28, 2021 REMANDED Entitlement to a total disability rating for individual unemployability due to the service-connected disabilities (TDIU) is remanded. Entitlement to an increased rating in excess of 30 percent for cervical spine osteoarthritis with spurring, stenosis, annular tear, and decreased disc height, is remanded. Entitlement to service connection for a right arm condition, to include as secondary to the service-connected disabilities, is remanded. Entitlement to service connection for a left hand disability, to include as secondary to the service-connected disabilities, is remanded. Entitlement to service connection for a right hand disability, to include as secondary to the service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1990 to May 1994. The increased rating and service connection issues are on appeal from a January 2014 rating decision. In December 2017, the Veteran testified at a Board of Veterans' Appeal (Board) hearing before the undersigned Veterans Law Judge. In June 2018, November 2019, and December 2020, the Board remanded the increased rating and service connection issues for further development. Subsequent to the May 2021 Supplemental Statement of the Case, the Agency of Original Jurisdiction (AOJ) added new pertinent medical evidence to the Veteran's claims file. The AOJ did not review this new evidence in the first instance. However, in an August 2021 statement, the Veteran waived initial AOJ review of this new evidence. The Board previously remanded the claims of entitlement to service connection for radiculopathy of the bilateral upper extremities. In a May 2021 rating decision, the AOJ granted these claims in full. The Veteran has not filed a Notice of Disagreement with these claims. These claims are no longer on appeal before the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. Here, the issue of entitlement to a TDIU due to the service-connected cervical spine disability is raised by the record. At her June 2021 VA neck examination, the Veteran stated that she stopped working due to her back and sciatica. The VA examiner found that the cervical spine disability causes functional impact. The Veteran had been unemployed since 2020. Based on the totality of this evidence, the Board has added the TDIU issue to the current appeal. REFERRED The issue of entitlement to service connection for right side sciatica was raised in a July 2021 VA 21-526EZ Form and is referred to the AOJ for adjudication. The issues of entitlement to effective dates earlier than February 24, 2021, for the grants of service connection for radiculopathy of the left upper extremity and right upper extremity, and entitlement to initial disability ratings in excess of 20 percent for radiculopathy of the left upper extremity and right upper extremity were raised in a July 2021 VA 20-0995 Supplemental Claim Form and are referred to the AOJ for adjudication. 1. Entitlement to a TDIU is remanded. The Veteran raised the issue of TDIU at her June 2021 VA neck examination. The AOJ should develop the issue, to include obtaining the Veteran's federal tax returns for her claimed period of unemployability. 2. Entitlement to an increased rating in excess of 30 percent for cervical spine osteoarthritis with spurring, stenosis, annular tear, and decreased disc height, is remanded. While the record contains a contemporaneous VA examination regarding the Veteran's cervical spine, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). At the June 2021 examination, the VA examiner found that the Veteran had pain on all ranges of motion; however, the examiner did not state at what degree this pain begins. Thus, this examination report is not adequate under current case law. Upon remand, another VA examination must be obtained. 3. Entitlement to service connection for a right arm condition, to include as secondary to the service-connected disabilities, is remanded. 4. Entitlement to service connection for a left hand disability, to include as secondary to the service-connected disabilities, is remanded. 5. Entitlement to service connection for a right hand disability, to include as secondary to the service-connected disabilities, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the service connection issue. The Board remanded these issues for VA examinations and medical opinions to be obtained. In March 2021, a VA examiner reviewed the evidence of record, examined the Veteran, and provided medical opinions. The Board finds these medical opinions to be inadequate. In providing the secondary service connection opinions, the VA examiner did not address all of the Veteran's service-connected disabilities. Instead, the examiner only addressed the service-connected cervical spine and bilateral shoulder disabilities. The VA examiner did not discuss the service-connected scar and the service-connected bilateral upper extremities radiculopathy. The Board directed the VA examiner to provide an opinion on all of the Veteran's service-connected disabilities. Also, the VA examiner did not provide chronic presumptions opinions for the arthritis diagnoses. Another remand is required for VA medical opinions to be obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a TDIU claim form. 2. Ask the Veteran to provide Internal Revenue Service (IRS) tax returns from 2020 to 2021, and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return," which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2020 to 2021, and submit them to VA. Tell the Veteran that if she does not have copies of her tax returns for the requested years, she may use the IRS form cited to above. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected cervical spine osteoarthritis with spurring, stenosis, annular tear, and decreased disc height. 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 pain is noted on active and/or passive motion, the VA examiner must state at what degree the pain begins. 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. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's currently diagnosed degenerative arthritis of the right arm. The examiner is asked to provide a response to the following: (i) Is the degenerative arthritis of the right arm at least as likely as not related to service? (ii) Is it at least as likely as not that the degenerative arthritis of the right arm (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (iii) Is the degenerative arthritis of the right arm at least as likely as not proximately due to a service-connected disability? (iv) Is the degenerative arthritis of the right arm at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? The Veteran is currently service-connected for the following disabilities: cervical spine osteoarthritis with spurring, stenosis, annular tear, and decreased disc height; right shoulder strain; left shoulder strain; radiculopathy of the left upper extremity; radiculopathy of the right upper extremity; and, scars of the right shoulder. Provide a rationale to support the opinions. 5. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's degenerative arthritis of the bilateral hands. The examiner is asked to provide a response to the following: (i) Is it at least as likely as not that the degenerative arthritis of the bilateral hands (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (ii) Is the degenerative arthritis of the bilateral hands at least as likely as not proximately due to a service-connected disability? (iii) Is the degenerative arthritis of the bilateral hands at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? The Veteran is currently service-connected for the following disabilities: cervical spine osteoarthritis with spurring, stenosis, annular tear, and decreased disc height; right shoulder strain; left shoulder strain; radiculopathy of the left upper extremity; radiculopathy of the right upper extremity; and, scars of the right shoulder. Provide a rationale to support the opinions. (Continued on the next page) 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Watkins, 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.