Citation Nr: 21069092 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 11-29 161 DATE: November 17, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for a low back disability, prior to May 27, 2021, is remanded. Entitlement to a disability rating in excess of 20 percent for a low back disability, from May 27, 2021, is remanded. Entitlement to a compensable disability rating for radiculopathy of the left lower extremity, prior to May 27, 2021, is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity, from May 27, 2021, is remanded. Entitlement to a compensable disability rating for radiculopathy of the right lower extremity, prior to May 27, 2021, is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity, from May 27, 2021, is remanded. Entitlement to a disability rating in excess of 10 percent for a right index finger disability is remanded. Entitlement to a disability rating in excess of 10 percent for residuals of a head injury is remanded. Entitlement to service connection for a vision disability, to include as secondary to a head injury, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to Special Monthly Compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i)(1) prior to May 27, 2021 is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1992 to November 1996. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in January 2017 and October 2019 for additional evidentiary development including obtaining outstanding relevant records and adequate VA examinations addressing the claimed disabilities. In a July 2021 rating decision, VA increased the disability rating for the low back from 10 percent to 20 percent, effective May 27, 2021. It awarded separate compensable disability ratings of 20 percent for associated radiculopathy of each lower extremity effective May 27, 2021. It granted a compensable disability rating of 10 percent for the Veteran's service-connected injury to the right index finger effective June 8, 2009. It also granted the Veteran entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i)(1) effective May 27, 2021. As the grant of additional compensation was a partial and not a full grant of the benefits the Veteran is seeking, VA issued a Supplemental Statement of the Case in July 2021 before returning the case to the Board. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. In this case, the record raises TDIU, as the Veteran has indicated that he is unable to work as a result of his service-connected disabilities. See generally records received from the Social Security Administration in February 2014. Accordingly, the Board has characterized the issues on appeal to include a claim of entitlement to TDIU. After reviewing the record, the Board finds it is necessary to remand these matters once more to (1) obtain outstanding relevant records, (2) afford the Veteran adequate VA examinations for his disabilities, and (3) to ensure VA substantially complies with the Board's prior remand directives. The Veteran reported at his March 2015 VA posttraumatic stress disorder (PTSD) examination that he worked with a private Licensed Clinical Social Worker (LCSW) for the past 15 months. However, the record does not contain records from the LCSW, which may be particularly relevant to rating the Veteran's residuals of a head injury and evaluating his TDIU claim. The record also does not contain adequate documentation of VA's attempts to obtain these records. Therefore, VA should attempt to obtain the records in accordance with 38 U.S.C. § 5103A. The Board also finds that while VA obtained additional examinations of the Veteran's head injury residuals in February 2020 and back disabilities in May 2021, they are inadequate. The February 2020 examiner opined the Veteran did not have a traumatic brain injury without addressing pertinent evidence that the Veteran suffers from residuals of a head injury. For example, while the February 2020 examiner indicated the record lacked supporting medical imaging studies including MRI and CT scans, a prior VA examiner opined in January 2015 that the Veteran suffered from many residuals of a head injury. The January 2015 VA examiner cited supporting MRI and CT scan records in the file. See, e.g., June 2014 Diagnostic Study Report from Central Alabama VA Healthcare System. The February 2020 examiner also did not assess the severity of the Veteran's associated headaches as the Board requested in the remand order. See also, e.g., October 1997 VA General Medical Examination (noting the Veteran suffered from chronic headaches, status post remote head injuries). On remand, VA should obtain a new VA examination of the Veteran's head injury residuals that addresses this favorable evidence according to the Board's prior remand directives. Additionally, VA should obtain a new VA examination of the Veteran's service-connected back disabilities and associated radiculopathies to address inconsistencies and deficiencies in the rationale of the May 2021 VA back examiner's opinion. While the examiner provided some estimates on the assessment form of additional functional loss in range of motion due to repetitive use and flare-ups, she indicated on a separate form that she could not estimate the Veteran's additional functional loss without resorting to speculation. The examiner did not explain the basis for the specific range of motion estimates considering repetitive use and flare-ups (e.g. a limitation of forward flexion to 35 degrees). Additional rationale is necessary to address whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran's forward flexion of the thoracolumbar spine was limited to 30 degrees or less after repetitive use and during flare-ups during the period on appeal. A limitation to 30 degrees or less of forward flexion may support a higher disability rating of 40 percent. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Additionally, the examiner should provide some rationale for the radiculopathy ratings. The May 2021 VA back examiner indicated the Veteran's bilateral radiculopathy of the lower extremities was "moderate" without explaining why it was not mild or severe. VA should obtain a new opinion addressing these deficiencies. In regard to the Veteran's claim for service connection for vision disabilities, the Board's prior remand order focused on obtaining an assessment of possible disabilities in the Veteran's vision due to his residuals of a head injury. As noted above, the recent opinion on the head injury does not address pertinent evidence or acknowledge the Veteran experienced a traumatic brain injury. Moreover, the Board finds the record shows the Veteran has diagnoses that may not be related to the head injury. For example, a February 2021 Eye E & M Note from Montgomery VA Clinic shows diagnoses of dry eyes, NIDDM without retinopathy, nuclear cataracts, and presbyopia. The Veteran's November 1996 Report of Medical History indicates the Veteran reported experiencing burning and watering of his eyes. VA should obtain an opinion on the extent to which each vision disability manifested during or was otherwise caused by the Veteran's military service. The Board REMANDS these matters for the following actions: 1. VA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records, to include records from a private Licensed Clinical Social Worker (LCSW). VA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all outstanding relevant records with the Veteran's claims file, VA should obtain an additional examination of the Veteran's low back disability using the most up-to-date disability benefits questionnaire. The examiner should provide an estimate of the Veteran's functional loss of the thoracolumbar spine, to include as due to flare-ups and after repetitive use. The examiner should provide some rationale for the estimation and opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran's forward flexion of the thoracolumbar spine has been limited to 30 degrees or less during the appeal period. The examiner must also provide an adequate assessment of the severity of the Veteran's radiculopathy of the lower extremities associated with the service-connected back disability. For example, if the examiner assesses the radiculopathy is "moderate," the examiner should explain why it is not "mild" or "severe" with reference to supporting evidence and consideration of the Veteran's lay statements about the severity of the radiculopathy. If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion 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). 3. After associating all outstanding relevant records with the Veteran's claims file, VA should obtain an additional examination of the Veteran's service-connected residuals of a head injury. The examiner should take note that VA has found the Veteran suffers from residuals from a head injury and that a January 2015 VA examiner identified several residuals based in part on MRI and CT imaging, which is documented in the claims file. The examiner should identify all residuals of the injury that the Veteran has experienced during the appeal period and rate the severity of the residuals based on a review of the entire record and not just the findings at the time of the examination. The examiner should specifically opine on the extent to which the Veteran suffers from problems with his vision and headaches attributable to the head injury. 4. After associating all outstanding relevant records with the Veteran's claims file, VA should also obtain an additional examination of the Veteran's vision disabilities apart from residuals of the head injury with an appropriate medical professional (e.g. an optometrist). VA should provide the examiner with a complete copy of the claims file, to include this remand order. VA should ensure the examiner addresses the following concerns: (a) The VA examiner should identify all disabilities affecting the Veteran's vision based on review of the claims file an examination of the Veteran if the Veteran is able and willing to attend an examination. For example, a February 2021 Eye E & M Note from Montgomery VA Clinic shows diagnoses of dry eyes, NIDDM without retinopathy, nuclear cataracts, and presbyopia. (b) The VA examiner should opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) each disability affecting the Veteran's vision manifested during or was otherwise caused by events during the Veteran's military service. For example, the Veteran's January 1996 Report of Medical History indicates the Veteran reported experiencing burning and watering of his eyes. (c) If the VA examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion 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). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.