Citation Nr: 21066519 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-22 221 DATE: November 1, 2021 REMANDED Entitlement to a rating in excess of 20 percent for gout is remanded Entitlement to a compensable rating for migraines is remanded. Entitlement to a rating in excess of 10 percent for right shoulder degenerative changes, acromioclavicular joint status-post superior labrum anterior and posterior SLAP repair (right shoulder disability), prior to March 26, 2019, and in excess of 30 percent thereafter, is remanded. Entitlement to a rating in excess of 10 percent for poly radiculopathy/neuropathy, carpal tunnel syndrome (CTS), right wrist (right upper extremity disability), prior to March 26, 2019, is remanded. Entitlement to a rating in excess of 10 percent for poly radiculopathy/neuropathy, CTS, left wrist (left upper extremity disability), prior to March 26, 2019, is remanded. REASONS FOR REMAND The Veteran had active service from October 1989 to May 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in May 2018; a transcript of that proceeding is of record. In April 2020, the Board of Veteran' Appeals (Board) issued a decision that denied the Veteran's claim of entitlement for an evaluation in excess of 50 percent for obstructive sleep apnea (OSA); an initial compensable rating for migraine headaches (HA); an evaluation in excess of 30 percent for right shoulder disability from March 26, 2019; an evaluation in excess of 30 percent for right upper extremity neurological disability from March 26, 2019; an evaluation in excess of 20 percent for left upper extremity neurological disability from March 26, 2019. In January 2021, pursuant to the terms of a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (CAVC) vacated and remanded the Board's decision related to a rating in excess of 20 percent for gout, a compensable rating for migraines, a rating in excess of 10 percent for a right shoulder disability prior to March 26, 2019, and a rating in excess of 30 percent thereafter, and a rating in excess of 10 percent for a right and left upper extremity disability prior to March 26, 2019. See January 2021 JMPR, pg. 3. The JMPR directed the Board to provide adequate reasons and bases for its findings regarding medical evidence, lay statements and the weight afforded each. In the CAVC JMPR, the Veteran expressly abandoned his appeal of the portion of the Board's decision which denied a rating in excess of 50 percent for OSA, a rating in excess of 30 precent for right upper extremity disability from March 26, 2019 and a rating in excess of 20 percent for a left upper extremity from March 26, 2019. After reviewing the record, the Board unfortunately concludes that the matter must be remanded again for additional development. Remand is necessary to obtain new VA examinations to assess the nature and severity of his disabilities. 1. Rating in excess of 20 percent for gout The Veteran contends that his gout is more severe than his 20 percent rating. The January 2021 JMPR indicated that the Board did not adequately address the Veteran's statements regarding exacerbations and incapacitating episodes of his gout. See May 2019 Statement (describing more than four severely incapacitating episodes per year and medications prescribed for exacerbations); see also May 2018 Board Hearing testimony (stating that he still has flare-ups four to five times per year, even while on medications). The Board concluded that his gout was effectively treated and did not warrant an initial rating in excess of 20 percent. See April 2020 Board Decision. Upon review, the Board notes that the last VA examination provided regarding the severity of his gout was in March 2019. The March 2019 VA examiner did not address the reports of flare-ups or reports of incapacitating episodes despite using prescribed medication. See March 2019 VA Examination, pg. 2. Regarding functional loss, pain, assistive devices, remaining effective function of the extremities, flare-ups, and functional loss after repeated use, the examiner's report stated, "no response provided." See id. pgs. 2-3. Thus, the Board finds the 2019 examination inadequate for adjudication purposes and remand is needed to obtain an adequate picture of the severity of the Veteran's gout disorder, a remand is needed to obtain an addendum examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Compensable rating for migraines The Veteran contends that his migraine condition is more disabling than his current non-compensable rating. See May 2013 Notice of Disagreement. The January 2021 JMPR indicated that the Board failed to consider the Veteran's report of daily HA, with nausea and photophobia, dating as far back as 2011. The Veteran testified that his migraine HA "knock [him] out at least three times per month, if not sometimes once per week," and that he believed that his HA "meet the definition of prostrating." See March 2018 Board Hearing Transcript, pg. 13. He also attended a Neurology Consult for HA and stated that his HA were relieved with Tylenol and with sleep. The JMR indicated that the Board did not account for these reported symptoms when concluding that his disability did not warrant a compensable rating. A March 2016 VA examination noted that the Veteran reported 2-3 severe, transiently incapacitating, HA each week. The examiner noted that the Veteran reported another 20 per week that were not incapacitating. See March 2019 VA Headache (including Migraine Headache) Disability Benefits Questionnaire, pg. 2. The 2019 examiner stated that the Veteran did not report experiencing prostrating HA. See id. at pg. 3. Thus, it is not clear whether the 2019 examiner considered or addressed lay statements, including hearing testimony, regarding the severity of his migraines. Further, it is unclear whether his symptoms are severe enough to be prostrating, and if so, how frequently HA of this nature occurred. For this reason, the Board finds that remand is necessary for a new examination to address the severity of his migraines and the inconsistency between the 2016 and 2019 examinations. 3. Rating in excess of 10 percent for a right shoulder disability prior to March 26, 2019 4. Rating in excess of 30 percent for a right shoulder disability from March 26, 2019 The January 2021 JMPR indicated that the Board did not explain the rejection of evidence of monthly flare-ups prior to March 26, 2019, in which the Veteran could not move his shoulder. See May 2014 VA Physical Therapy Assessment (noting "once a month he has episodes with pain 10/10 and the shoulder locks up and does not work."); see also September 2013 VA Annual Evaluation Report (noting "Rt shoulder has constant pain Locks up."). The Board acknowledged these reports but relied on a VA examination in 2011 and 2016 treatment records to conclude that a rating in excess of 10 percent was not warranted prior to March 26, 2019. Whereas May 2014 and September 2013 Physical Therapy treatment notes discuss more frequent episodes of pain in the right shoulder. Upon review, the March 2019 VA examiner did not address the physical therapy reports from 2013 and 2014. Further, the 2011 VA examination, it did not include relevant physical therapy notes from 2013 and 2014. These records are relevant to the determination of the severity of the Veteran's right shoulder disability prior to March 26, 2019. Further, it is unclear from the March 2019 VA examiner's opinion whether the Veteran's ROM during flare-ups is 100 percent less than his baseline, or midway to his side. Thus, the Board finds remand is warranted for a new VA examination to determine the severity of the right shoulder disabilitybefore and after March 26, 2019that addresses all treatments, statements, and estimated ROM during flare-ups. 5. Rating in excess of 10 percent for a right upper extremity disability, prior to March 26, 2019. 6. Rating in excess of 10 percent for a left upper extremity disability, prior to March 26, 2019. The January 2021 JMPR indicated that the Board did not account for the Veteran's complaints of weakness in the upper extremities. Upon review, the Board notes that a March 2019 VA examiner noted that EMG tests revealed bilateral mild to moderate demyelinating neuropathy at the wrist, or CTS; mild to moderate slowing of the median motor and sensory conduction. The examiner stated that these findings showed no significant change from the prior EMG testing in 2015. However, the examiner did not address complaints of bilateral upper extremity weakness. See March 2017 VA Pain Management Consult (noting complaints of weakness in the upper extremities). More importantly, the examiner did not opine whether complaints of upper extremity weakness are related to findings of demyelinating neuropathy or CTS. The March 2019 examiner listed the Veteran's only functional complaints as that of numbness and tingling in his fingers, pain, or achiness at times, interfering with opening pill bottles or large bottle covers. See March 2019 VA examination, pg. 7. The examiner stated there is no documented functional loss of the hands. See id. As VA medical records document complaints of upper extremity weakness that the examiner did not consider, the Board finds the examination is inadequate for adjudication. Thus, a remand is needed for new opinions regarding his upper extremity disabilities. Because the Board finds that remand of the entire matter is necessary, adjudication of the reasons and bases directed by the JMPR is premature and will be discussed after adequate medical opinions have been obtained. To ensure a complete record when this case is returned to the Board, updated VA treatment records from April 18, 2019, to the present should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records related to the claims. 2. Schedule the Veteran for an appropriate VA examination to identify the current nature and severity of his service-connected gout, migraines, right shoulder, and right and left upper extremity disabilities. The examiner should fully describe each disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 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. To the extent possible, the examiner should discuss the effect of the Veteran's disabilities 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). The examiner's attention is drawn to and must address the following in providing the opinions above: a) Gout: (i) May 2019 Statement (describing more than four severely incapacitating episodes per year and medications prescribed for exacerbations); (ii) May 2018 Board testimony (stating he has flare-ups 4-5 times per year, even while on medications). b) Migraines: (i) testimony that migraine HA "knock [him] out at least three times per month, if not sometimes once per week," and believes it "meet the definition of prostrating." See March 2018 Board testimony, pg. 13; (ii) Neurology Consult stating HA relieved with Tylenol and sleep; (iii) inconsistencies in 2016 and 2019 VA examinations. c) Right shoulder disability: (i) May 2014 VA Physical Therapy Assessment (noting "once a month he has episodes with pain 10/10 and the shoulder locks up and does not work."); (ii) September 2013 VA Annual Evaluation Report (noting "Rt shoulder has constant pain Locks up."). (Continued on the next page) d) Right and Left Upper extremity disabilities: (i) March 2017 VA Pain Management Consult (noting complaints of weakness in the upper extremities); (ii) clarify March 2019 examiner statement "100% less ROM during flares" providing a ROM in degrees. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, Associate 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.