Citation Nr: 21076006 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-01 951 DATE: December 22, 2021 REMANDED Entitlement to an increased evaluation for service-connected residuals of total left knee post-prosthetic replacement (previously characterized as left knee derangement with degenerative arthritis) (hereinafter, service-connected left knee disabilities), rated as 20 percent disabling prior to March 23, 2018, and as 60 percent disabling from May 1, 2019, is remanded. Entitlement to an initial evaluation in excess of 20 percent for service-connected left ankle tendonitis (hereinafter, left ankle disability), is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected residuals of a right rotator cuff tear with subacromial and subdeltoid bursitis (hereinafter, right shoulder disability), from March 2, 2015, to October 23, 2020, is remanded. Entitlement to an initial evaluation in excess of 40 percent for service-connected radiculopathy of the right arm and residuals of a right rotator cuff tear with subacromial and subdeltoid bursitis, to include the propriety of the assignment of separate initial evaluations, from October 23, 2020, is remanded. Entitlement to service connection for an acquired psychiatric disability (claimed as depression), to include as secondary to a service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1977 to June 1980, with prior inactive service of an unverified nature. These matters come to the Board of Veterans' Appeals (Board) from May 2012 and October 2015 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO) in the San Juan, the Commonwealth of Puerto Rico. The Veteran expressed timely disagreement with the determinations relating to the issues listed on the title page, and the present appeal ensued. These appealed issues, among others, previously before the Board in August 2018, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. The Board's August 2018 remand included an appealed issue to establish service connection for a right hip disability. However, in a February 2021 rating decision, the AOJ established service connection for right hip disabilities, and assigned initial 10 percent and noncompensable (zero percent) evaluations for separate manifestations of these disabilities, effective from March 2, 2015. Although the appeal period remains pending with regard to these determinations, the Veteran has not expressed disagreement with the assigned initial evaluations or effective date of these awards, and thus, the appealed issue remanded by the Board is no longer in appellate status. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Board's August 2018 remand also included appealed issues seeking earlier effective dates for the awards of service connection for the right shoulder and left knee disabilities for issuance of a Statement of the Case (SOC) pursuant to the United States Court of Appeals for Veteran's Claims' (the Court's) holding in Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran was provided an SOC readjudicating these issues in June 2021; however, the Veteran did file a timely appeal. As such, those issues are no longer in appellate status. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 (substantive appeal), the Board is not required, and in fact, has no authority, to decide the claim). Lastly, the Board observes that the Veteran filed a claim seeking a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) during the pendency of the present appeal, which stems from a claim filed with the AOJ on August 10, 2011. While the Board acknowledges the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 452 (2009), such will not be considered at this time because, following a March 2020 Board remand, the AOJ, in a September 2020 Decision Review Officer (DRO) decision, granted a TDIU from March 22, 2018 the day following cessation of the Veteran's most recent employment. Accordingly, the appealed issue is no longer in appellate status. Clarification of issues on appeal In rating decisions dated in August 2018 and May 2021, the AOJ partially granted the Veteran's appealed issues seeking increased evaluations for his service-connected left knee and right shoulder disabilities; however, as neither allowance represents a full grant of the benefits sought on appeal, both issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Further, in the August 2018 and May 2021 rating decisions, the AOJ significantly recharacterized the Veteran's service-connected left knee and right shoulder disabilities. Specifically, the Veteran's service-connected left knee disability now reflects the completion of a total joint replacement with prosthesis and the initial evaluation assigned for the Veteran's service-connected right shoulder disability was, effective October 23, 2020, combined with an initial evaluation for service-connected radiculopathy of the right arm (secondary to a service-connected neck disability) for rating purposes. The latter determination was based on the AOJ's finding that "the rating criteria for each of these conditions overlap." The Board has bifurcated the Veteran's appealed issue seeking an increased initial evaluation for his service-connected right shoulder disability to ensure that such is readjudicated in totality. Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012). As this issue must be remanded for further procedural and evidentiary development, the Veteran is not prejudiced by the Board's actions in this regard. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. Entitlement to an increased evaluation for service-connected residuals of total left knee post-prosthetic replacement (previously characterized as left knee derangement with degenerative arthritis) (hereinafter, service-connected left knee disabilities), currently evaluated 20 percent disabling prior to March 23, 2018, and 60 percent disabling from May 1, 2019, is remanded. 2. Entitlement to an initial evaluation in excess of 20 percent for service-connected left ankle tendonitis (hereinafter, left ankle disability), is remanded. Since the Board's August 2018 remand, extensive medical evidence has been added to the Veteran's file, to include private treatment records from Dr. R. M. dated from June 2019 to July 2019 and records from the Veteran's Social Security Administration (SSA) file. Unfortunately, much of this medical evidence is in Spanish, and thus, translation is necessary to allow the Board to consider such. As the San Juan RO is the AOJ in the present case, remand is appropriate. This procedural defect impacts the Board's ability to readjudicate all of the Veteran's appealed issues. Further reasons to remand the Veteran's other appealed issues are outlined below. 3. Entitlement to an initial evaluation in excess of 10 percent for service-connected residuals of a right rotator cuff tear with subacromial and subdeltoid bursitis (hereinafter, right shoulder disability), from March 2, 2015, to October 23, 2020, is remanded. 4. Entitlement to an initial evaluation in excess of 40 percent for service-connected radiculopathy of the right arm and residuals of a right rotator cuff tear with subacromial and subdeltoid bursitis, to include the propriety of the assignment of separate initial evaluations, from October 23, 2020, is remanded. As noted above, the AOJ combined the initial evaluations assigned for the Veteran's service-connected right shoulder disability and radiculopathy of the right arm because "the rating criteria for each of these conditions overlap." However, review of VA's Rating Schedule pertinent to the shoulder (Diagnostic Codes 5201 5203) involve consideration limitation of motion and anatomical deficiencies of the shoulder, while the criteria pertinent to the Veteran's radiculopathy of the right arm (Diagnostic Code 8510) involves determining the degree (mild, moderate, or severe) of neurologic impairment of the nerves comprising the upper radicular group due to symptoms, such as numbness or "pins and needles" as reflected on the report of the April 2021 neck examination. In sum, while the Board acknowledges the AOJ's actions and reasoning behind these determinations, it is unclear whether the evidence of record supports these conclusions. For instance, if the Veteran's radiculopathy of the right arm impacts the Veteran's right shoulder motion, such is not "wholly sensory," and thus, meets the criteria of "moderate" incomplete paralysis of the affected nerves, at least, under Diagnostic Code 8510. Miller v. Shulkin, 28 Vet. App. 376 (2017). On the other hand, if the Veteran's radiculopathy of the right arm does not impact movement or anatomical makeup of the shoulder, the two initial evaluations should not be combined. Unfortunately, the April 2021 VA shoulder and neck examination reports do not describe these matters with the specificity necessary to address the appealed issues. As such, the Veteran must be provided additional VA medical examinations to reconcile these matters. Lastly, while the AOJ readjudicated this merged issue in the May 2021 rating decision, the May 2021 Supplemental Statement of the Case did not include readjudication of this issue from October 23, 2020, to the present. Accordingly, remand is necessary to that the AOJ may readjudicate this matter from October 23, 2020, to the present in the first instance. 5. Entitlement to service connection for an acquired psychiatric disability (claimed as depression), to include as secondary to a service-connected left knee disability, is remanded. As noted in the Board's August 2018 remand, the March 2012 VA examiner provided a diagnosis of dyssomnia, not otherwise specified (NOS); however, remand was necessary because the medical nexus opinions were not adequately stated and did not address all theories of entitlement asserted by the Veteran. Consequent to the Board' remand, the Veteran was provided a VA psychiatric examination in April 2021 to address these matters. After a review of the file and tele-health interview and examination, the April 2021 VA examiner stated that the Veteran's psychiatric symptoms, to include a fragmented sleep pattern, are manifestations of major depressive disorder; however, it was opined that such was not due to the Veteran's reported in-service sleep disturbances or caused or aggravated by a service-connected disability. Unfortunately, another remand is necessary because the April 2021 VA examiner's statements and opinions are inadequate for the purpose of readjudicating the Veteran's appealed issue. Specifically, the April 2021 VA examiner did not state whether dyssomnia, NOS, had resolved since the March 2012 or whether the prior diagnosis was rendered in error. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Further, the April 2021 VA examiner's rationale does not adequately support the finding that the Veteran's in-service and current fragmented sleep pattern are not manifestations of the same disability. In view of above, the Board concludes that another remand is necessary to provide the Veteran a VA examination to determine the nature and etiology of any psychiatric disability present during the appeal period. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA and private treatment, with the Veteran's assistance regarding the latter. 2. The OAJ must obtain English language translations of all documents in the file that are in Spanish. *The Board is particularly interested in obtaining translation of the private treatment records from Dr. R. M. dated from June 2019 to July 2019, records from the Veteran's Social Security Administration (SSA) file, and any other records obtain downstream from this remand which are in Spanish. *The English translations of these records must be associated with their respective Spanish originals in the Veteran's file. 3. The AOJ must provide the Veteran with appropriate VA examinations to determine the nature and etiology of all psychiatric disabilities present during the appeal period and the level of functional impairment resulting from his service-connected right shoulder disabilities and radiculopathy of the right arm. The Veteran's complete VA file must be available to, and reviewed by, the VA examiner in connection with this examination. Thereafter, the VA examiner is asked to address the following: a. Describe the severity, frequency, and duration of all symptoms attributable to the Veteran's service-connected right shoulder disabilities, to include the resulting level of functional impairment. *In addressing the above, the examiner is asked to discuss the anatomy of the Veteran's right shoulder in terms congruent with the applicable rating criteria (former and current) pertinent to all parts of the shoulder, to include the Muscle Groups involved. If any muscle(es) affecting the right rotator cuff are damaged, the examiner must identify the damaged muscle, the Muscle Group, and describe the level of functional impairment associated with the muscle injury/injuries. b. Describe the severity, frequency, and duration of all symptoms attributable to the Veteran's service-connected radiculopathy of the right arm, to include the resulting level of functional impairment. *In addressing the above, the examiner must specifically state whether this disability is manifested by any symptom(s) beyond "wholly sensory." In sum, the examiner must state whether the Veteran's service-connected radiculopathy of the right arm results in any impairment of motion or physical functioning of the right arm and/or hand. c. Identify all psychiatric disabilities present during the appeal period (since August 2011). *If dyssomnia, NOS, or major depressive disorder are not identified in part (c), the examiner must state whether these prior diagnoses were rendered in error or whether such resolved. d. For each psychiatric disability identified in part (c), provide an opinion addressing whether such is at least as likely as not proximately due to or the result of any incident of the Veteran's service. *In addressing the above, the examiner must state whether the Veteran's reported fragmented sleep pattern during and since service is a manifestation of the same disability. e. For each psychiatric disability identified in part (c), provide an opinion addressing whether such is at least as likely as not caused by a service-connected disability. f. For each psychiatric disability identified in part (c), provide an opinion addressing whether such is at least as likely as not aggravated by a service-connected disability. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. This readjudication must include a full discussion of the propriety of the assignment of separate initial evaluations for the Veteran's service-connected radiculopathy of the right arm and service-connected left shoulder disabilities from October 23, 2020, to the present. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his private attorney with a copy of the readjudication and afford them an appropriate period to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.