Citation Nr: 21067717 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-48 097 DATE: November 5, 2021 ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected spinal concussion. 2. Entitlement to a disability rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity, associated with spinal concussion. 3. Entitlement to a disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity, associated with spinal concussion. 4. Entitlement to service connection for a right hip disability, to include as due to service-connected disabilities. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected spinal concussion is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity, associated with spinal concussion is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity, associated with spinal concussion is remanded. Entitlement to service connection for a right hip disability, to include as due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from August 1985 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2014 and April 2016 rating decisions, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, an October 2014 rating decision granted the Veteran service connection for a spinal concussion with a 10 percent disability rating. That same decision granted entitlement to service connection for radiculopathy of the left lower extremity at 10 percent disabling, while entitlement to service connection for radiculopathy of the right lower extremity was denied. The Veteran filed a timely Notice of Disagreement (NOD) with the disability rating for the spinal concussion, and the denial of the right lower extremity service connection claim. A subsequent rating decision from July 2016 granted the Veteran service connection for radiculopathy of the right lower extremity at a 10 percent disability rating. The Veteran was issued a statement of the case (SOC) in August 2016, and the Veteran's Attorney submitted a timely VA Form 9 the following month. In the VA Form 9, the Veteran requested a hearing before a Veterans Law Judge. Concurrently, the Veteran's claim for entitlement to service connection for a right hip disability was denied in an April 2016 rating decision, and he filed a timely NOD in June 2016. The Veteran was issued an SOC in September 2017, and the Veteran's Attorney filed a VA Form 9 in November 2017. The Attorney again requested a hearing before a Veterans Law Judge. The Veteran's service connection claim was merged with the increased ratings claim for the spine disability and those claims were certified to the Board. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in May 2020 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. During the hearing, the Veteran's Attorney argued that the Veteran's service-connected bilateral lower extremity radiculopathies had also worsened, and that they are inextricably intertwined with the increased ratings claim for the service-connected spinal concussion. Therefore, at the discretion of the undersigned Veterans Law Judge, the Board has taken jurisdiction of the increased ratings claims for the service-connected bilateral lower extremity radiculopathies. As reflected on the title page, those issues are now on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). When a Veteran files a claim for an increased rating, they are presumed to be seeking the maximum benefit under any applicable theory, including total disability rating based on individual unemployability (TDIU). See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Id. at 453-54. In this case, despite the Veteran's claims that his service-connected disabilities have caused him to miss work, he also testified in May 2020 that he is currently self-employed as a construction estimator and project manager. Therefore, the issue of entitlement to TDIU is not before the Board at this time. 1. Entitlement to a disability rating in excess of 10 percent for service-connected spinal concussion; and entitlement to disability ratings in excess of 10 percent for service-connected radiculopathies of the bilateral lower extremities are each remanded. The Veteran has claimed that his service-connected spinal concussion and his service-connected bilateral lower extremity radiculopathies, secondary to spinal concussion, are each worse than currently rated. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran was given a Board hearing before the undersigned in May 2020. During the hearing, the Veteran testified that he feels that his back disability has worsened. He testified that he experiences back pain that radiates down his legs, and that he feels numbness in his lower extremities. He noted that his spine disability is "perpetually getting worse," that he has a limited range of motion, that he now uses a can, and that it is increasingly more difficult to walk and climb stairs. The Veteran described painful flare ups, whereby he "can't bend over ... because of the amount of pain." The Veteran also described days where he has to stay home due to the pain caused by his spine, and that on some days he is barely able to walk. The Veteran is competent to report the symptoms he experiences, such as those associated with his spine and lower extremities. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that the Veteran's most recent VA examination for his service-connected spine concussion was in September 2014, over seven years ago. Since that VA examination, the Veteran has testified that his range of motion has decreased, and that on some days he is barely able to walk. The Board notes that these symptoms may arguably be described as intervertebral disc syndrome (IVDS), although such a diagnosis must be confirmed by a medical professional. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). Furthermore, the Veteran has described limited motion as a result of painful flare ups. This is particularly important following a recent Court decision which addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Again, the Veteran has testified that the severity of this service-connected spine disability has worsened since the most recent VA examination. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected spine disability. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). Finally, and as noted in the introduction, the Veteran has also testified that his lower extremity radiculopathies are inextricably intertwined to the worsening of his service-connected spine. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran also testified that his service-connected radiculopathies are worse than currently rated, and that they are partially responsible for his decreased mobility. As such, the Board finds that the Veteran should also be afforded a new VA examination to assess the current nature and severity of his service-connected bilateral lower extremity radiculopathies. See Weggenmann, Id. 2. Entitlement to service connection for a right hip disability, to include as due to service-connected disabilities is remanded. The Veteran has claimed that his right hip disability is proximately due to, or aggravated by, his various service-connected disabilities. This specifically includes his service-connected spinal concussion, and his service-connected bilateral lower extremity radiculopathies. Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). During the Veteran's May 2020 Board hearing, he testified that he believes his right hip may be secondary to his service-connected disabilities. Specifically, he testified that his "right hip is actually a secondary issue, because his left leg [radiculopathy] is the worse leg." The Veteran's Attorney argued that the Veteran's "left leg goes numb [so] he has to limp [and] he has to change the way that he walks, which puts extra pressure on the right side." The Veteran later testified that he is limping on my left and my right. My left hip, the limp, the gait has been so bad that they've put me on a cane. Now I'm getting transfer to sciatic into the right hip. So, I'm not sure where to go from here. Probably a walker or wheelchair ... if I'm getting severe pain in the right hip and walking, I have to sit down. I can't go anywhere ... my back is compensating for the injury and creating more stress down below into the lower spine. The Veteran testified that he feels that he has a right hip arthritis due to the altered gait from his service-connected disabilities, and that his right hip pain is separate and distinct from the service-connected right lower extremity radiculopathy. As an initial matter, the Veteran's claimed right hip disability has not been confirmed. Considering the criteria for entitlement to service connection, the Veteran's diagnosis, if any, must be confirmed. Furthermore, as the Veteran has claimed that he experiences right hip pain, which has led to a functional impairment in his ability to ambulate and bend, his claimed disability must be confirmed with consideration to Saunders v. Wilkie. In Saunders v. Wilkie, the Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board notes that the Veteran has not been given a VA examination for his claimed right hip disability, and no examiner has opined as to whether or not the claimed right hip disability may be proximately due to or aggravated by his service-connected disabilities. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A (d)(2) (2012), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran must be given a VA examination, so that his claimed right hip disability can be confirmed, and an etiological opinion may be given on a secondary basis. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for a VA medical examination(s) (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) with an appropriate physician(s) in regard to his claims of entitlement to service connection for a right hip disability, as well as to assess the current severity of his service-connected spinal concussion and bilateral lower extremity radiculopathies. Additional VA examinations should be scheduled as deemed necessary. The entire claims file, to include a copy of this remand, should be made available for the clinician(s) to review, and the reports should reflect that such review was accomplished. The clinician(s) should consider the lay statements and testimony of the Veteran. The examiner is asked to offer opinions as to the following: As it relates to the claimed right hip disability: (a.) the examiner is to provide a diagnosis which accounts for the Veteran's present symptoms of his right hip disability. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as pain, or instability. Complete the "Functional Impact" section of the report. **Please note new case law: pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). Then, for any/all disabilities found, address: (b.) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's diagnosed right hip disability had its onset in service or is otherwise related to service? (c.) If not, is it at least as likely as not that the Veteran's right hip disability was caused or aggravated (increased in severity) by the Veteran's service-connected disabilities, to include, but not limited to, his service-connected spinal concussion, and/or his service-connected bilateral lower extremity radiculopathies, and/or the combined impact of those service-connected disabilities? The examiner is reminded that the Veteran testified that his altered gait causes additional pressure on his right hip, which has resulted in pain and a functional impairment. For any opinion provided, if the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of the severity of the nonservice-connected disorder before the on-set of aggravation. "Aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. As it relates to the Veteran's service-connected spinal concussion, and his service-connected bilateral lower extremity radiculopathies: (d.) determine the current severity of the Veteran's service-connected spinal concussion and bilateral lower extremity radiculopathies. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examiner is reminded that the Veteran testified in May 2020 as to the severity and frequency of his flare ups, in addition to further symptoms of pain, limited mobility, an inability to bend over, and numbness down his legs. The examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joint(s) in question and any paired joint(s). See Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The examiner should detail range of motion measurements, to include the degree at which he experiences pain, any additional impact caused by motion such as weakness and fatigability, incoordination, or swelling. The examiner is to note a full and complete history of the Veteran's symptoms, to include symptoms associated with any flare-ups. Provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to ascertain information as to the frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Attorney should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Attorney should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.