Citation Nr: 21071151 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-07 965 DATE: November 29, 2021 REMANDED Entitlement to an increased initial evaluation in excess of 10 percent from March 20, 2013 for right arm median nerve palsy is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to December 4, 2018, to include extraschedular consideration, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By way of background, Veteran has been service-connected for a right arm disability effective from the date of the original claim of March 20, 2013. After the March 2014 rating decision which granted service connection, the Veteran filed a notice of disagreement, asserting the 10 percent rating awarded did not adequately describe his symptoms. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a virtual Board hearing in August 2021. A transcript of the hearing is of record. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Board notes the Veteran has already been awarded a TDIU effective from December 4, 2018. However, the Veteran had asserted before that date in VA medical examinations that his service-connected disabilities prevent him working. The Board thus finds an inferred claim for TDIU prior to December 4, 2018, and will discuss the issue further below. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that her disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of SMC is not inferred by the record, and as such will not be discussed. 1. Entitlement to an increased initial evaluation in excess of 10 percent from March 20, 2013 for right arm median nerve palsy is remanded. The Veteran seeks a higher evaluation for his service-connected right arm median nerve palsy disability. This disability is currently rated at 10 percent under Diagnostic Code 5235, for vertebral fracture or dislocation, and Diagnostic Code 8515, for paralysis of the median nerve. The Veteran has asserted that a higher evaluation is warranted because of the degree of pain and physical limitations of movement he endures on a daily basis. The Veteran's last formal VA examination for his right arm disability left shoulder was in July 2015, over 6 years ago at the time of this Board remand. 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). The Veteran submitted medical records after her January 2021 hearing with the undersigned VLJ that indicate worsening of her left shoulder disability. 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). In addition, since the Veteran's left shoulder disability was last evaluated in a VA medical examination, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). This type of joint testing was not accomplished during the Veteran's most recent VA examination in April 2013; accordingly, further VA examination is warranted. The Board notes that the Veteran reports flare ups of her shoulder disability. The examiner is reminded that when Veteran reports flare ups of any disability, the examiner is asked to 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). A functional loss results when ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance" is inhibited. 38 C.F.R. § 4.40. Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently 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. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board notes from the Veteran's lay statements and Board testimony that her left shoulder pain is chronic and severe, and that she has had to take increasing amounts of pain-relievers for her shoulder pain. The Board also notes on February 7, 2021 that a substantial revision to 38 C.F.R. §§ 4.71a & 4.73, the schedule of ratings for musculoskeletal injuries and muscle injuries, respectively, took effect. 85 Fed. Reg. 76453 (Nov. 30, 2020). Part of the changes include revisions to diagnostic codes involving degenerative arthritis and neurological conditions, both of which are part of the Veteran's medical record. Because the Veteran's claim originated prior to this change, the RO is reminded that either the old criteria or the new criteria can be used, whichever is more favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to December 4, 2018, to include extraschedular consideration, is remanded. It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability exists where there is any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. "A claim for TDIU is based on an acknowledgment that even though a rating less than 100 percent under the rating schedule may be correct, objectively, there are subjective factors that may permit assigning a 100 percent rating to a particular veteran under particular facts, notwithstanding the putative correctness of the objective rating." Parker v. Brown, 7 Vet. App. 116, 118 (1994). The Veteran is currently service-connected for posttraumatic stress disorder (PTSD) with a 70 percent evaluation from February 27, 2015; degenerative arthritis of the spine with a 40 percent evaluation from December 4, 2018; right hand median nerve palsy with a 10 percent evaluation from March 20, 2013; tinnitus with a 10 percent evaluation from September 13, 2010; and a noncompensable rating for bilateral hearing loss. The Veteran has been awarded a TDIU based on a previous increased rating claim, from December 4, 2018, but his statements and disabilities prior to that date point to an asserted inability to gain and maintain suitable employment. However, the Board notes from the medical record and the Veteran's lay statements that the Veteran may be unemployable by reason of service-connected disabilities, but he fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a) for most of the period prior to the current TDIU effective date of December 4, 2018. The Board cannot award TDIU under § 4.16(b) in the first instance, but must submit the matter to the Director, Compensation Service. See Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009); Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board cannot award TDIU under 38 C.F.R. § 4.16 (b) in the first instance because it has no power to do so). As such, remand is also necessary such that the RO can refer the Veteran's case for a TDIU to the Director, Compensation Service for an opinion regarding the Veteran's potential for TDIU prior to December 4, 2018. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for the appropriate VA examination by a VA medical professional with expertise in orthopedics to determine the nature and severity of the Veteran's right arm median nerve palsy, to include all orthopedic and neurological manifestations. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. For the examination provided for the right arm disability, the examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both of the joints in question. See Correia v. McDonald, 28 Vet. App. 158 (2016). The VA examiner should conduct, consistent with 38 C.F.R. § 4.59, range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-ups, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate informationi.e., frequency, duration, characteristics, severity, or functional lossregarding her flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The Board invites attention to the Veteran's other related disability, that of his degenerative arthritis of the spine, previously rated as residuals of a back injury with compression fractures of multiple thoracic vertebrae and notes the possibility that there may be findings and symptoms that overlap between the Veteran's right arm median nerve palsy, which is on appeal, and the Veteran's spinal degenerative arthritis disability, which is not. The Board asks the examiner in the development of his assessment of the nature and severity of the Veteran's right arm disability to distinguish if possible the symptoms of that disability from the back symptoms. The Board reminds that if the conditions cannot be sufficiently distinguished, entitlement to the benefit sought is determined based on the overlapping symptoms, which are attributed in whole to the service-connected disability in question. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). 3. After the above development regarding the right arm disability is complete, refer the issue of entitlement to a TDIU prior to December 4, 2018 to the Director, Compensation Service, for an opinion in accordance with 38 C.F.R. § 4.16(b). 4. Thereafter, readjudicate the issue on appeal as noted above, to include the TDIU prior to December 4, 2018. Attention is invited to the revised 38 C.F.R. § 4.71a criteria for musculoskeletal disabilities, including the Veteran's right arm disability, and the Veteran should receive the benefit of whatever criteria, old or revised, that provides a greater rating. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.