Citation Nr: 21071674 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-43 367 DATE: December 1, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a back disability is remanded. Entitlement to a rating in excess of 10 percent prior to February 11, 2020, and in excess of 30 percent from February 11, 2020, for a neck disability is remanded. Entitlement to a compensable rating for gout of the left foot and right great toe and foot is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from October 1982 to January 2005. The Veteran also had additional service with a Reserve Component. In June 2021, the Veteran and a friend testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In September 2021, the Board of Veterans' Appeal (Board) received the Veteran's waiver of agency of original jurisdiction review of the additional evidence that was added to the claims file since it issued the July 2017 statement of the case. See 38 C.F.R. § 20.1304(c). Lastly, the Board finds that the Veteran's June 2021 personal hearing testimony rases the issue of a TDIU which claim has been pending since the Veteran filed his claim on July 2, 2014. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a rating in excess of 10 percent for a back disability, a rating in excess of 10 percent prior to February 11, 2020, and in excess of 30 percent from February 11, 2020, for a neck disability, and for a compensable rating for gout of the left foot and right great toe and foot are remanded. As to all the above rating claims, the Board finds that the Veteran at his personal hearing testified, in substance, that his back and neck disabilities as well as his gout had worsened since his back and neck were last examined in 2014 and his gout was last examined in 2019. Therefore, the Board finds that a Remand is needed to provide the Veteran with new VA examinations. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In providing the requested VA examinations, the examiners should be mindful of the fact that since the 2014 back and neck VA examinations the United States Court of Appeals for Veterans Claims (Court) issued its' decisions in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) requiring the Board when rating musculoskeletal disabilities to consider the joints range of motion taking into account the Veteran's complaints of pain as well as their ranges of motion during flare-ups as well as with and without weight bearing and resistance in passive and active range of motion. Additionally, when again rating the Veteran's disabilities, the RO should be mindful of the fact that the Court held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). While these issues are in Remand status, any outstanding VA and private treatment records should also be obtained and associate with the record to include the treatment records the Veteran testified about from Dr. Campbell and Dr. Bishop as well as all records generated in connection with the January 17, 2017, cervical spine fusion. See 38 U.S.C. § 5103A(b). Entitlement to a TDIU is remanded. As to the claim for a TDIU, as noted above, it is raised by the record even though the Veteran has been in receipt of a combined 100 percent schedular rating and Dependent's Educational Assistance since February 11, 2020. See Rice, supra. However, the existing record is not adequate to adjudicate he claim because the Board is unable to ascertain when, if ever, the Veteran's service-connected disabilities prevented him from obtain and maintaining substantial gainful employment since he filed his claim on July 2, 2014. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a Remand is required to obtain from the Veteran a Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claims Form), to obtain his employment history. The appeal is REMANDED for the following actions: 1. After obtaining all needed authorizations from the Veteran, associate with the claims file all outstanding private treatment records to include the treatment records the Veteran testified about from Dr. Campbell and Dr. Bishop as well as all records generated in connection with the January 17, 2017, cervical fusion. If possible, the Veteran or his representative should submit and new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 2. Obtain and associate with the claims file any outstanding VA treatment records (if any). 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, if he is working in a protected environment and/or whether he earns more than the poverty level, whether he continues to be employed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevent him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran and/or his representative in obtaining this information would be appreciated. The form cited above is available on-line. The request should also notify the Veteran that the claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing at the VA Form 21-8940. 4. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his back and neck disabilities as well as gout. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: (a) The examiner should identify all back, neck, and gout pathology found to be present during the pendency of the appeal. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies of the back, neck, and left foot/right great toe/right foot. (c) In order to comply with Correia, supra, the joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) In order to comply with Sharp, supra, the examiner should also state whether the examination is taking place during a period of flare-up. If the examination is taking place during a flare-up, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If the examination is NOT taking place during a flare-up, the examiner should ask the Veteran to describe the flare-ups he experiences, including the following: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited back, neck, left foot/right great toe/right foot motion to include any lost flexion, extension, side to side, and/or rotation caused by functional loss during a flare-up and after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion as to whether the Veteran's lost ranges of motion equates to ankylosis in the back, neck, and/or left foot/right great toe/right foot. (e) The examiner should also state the number of weeks of incapacitating episodes caused by the back or neck disability in each 12-month period during the pendency of the appeal. (f) The examiner should state the nature, extent, and severity of any loss of sphincter and bladder control caused by the service-connected back and/or neck disability. If the examiner cannot provide any the above range of motion estimates without resorting to speculation, the examiner should 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). If the examiner cannot provide any of the range of motion estimate without resorting to speculation because of a deficiency in the record or the examiner, all appropriate steps should be taken to correct the deficiency. In providing the opinions, the examiner should consider the Veteran's competent lay claims regarding observable symptomatology. (Continued on the next page) The examination report must include a complete rationale for all opinions expressed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.