Citation Nr: 21005358 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-31 871 DATE: February 1, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for residuals, right shoulder-AC separation on and after February 4, 2014 to March 12, 2015, and on and after August 1, 2015, is remanded. Entitlement to an initial noncompensable rating on and after February 4, 2014 to January 8, 2017 for right knee strain (recharacterized as total knee replacement, right knee) is remanded. Entitlement to an initial rating in excess of 30 percent for cervical spine disability is remanded. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain is remanded. Entitlement to an initial rating in excess of 10 percent for left elbow avulsion injury with residuals is remanded. Entitlement to an initial rating in excess of 10 percent for left upper extremity, carpal tunnel syndrome is remanded. Entitlement to an initial noncompensable rating for gastroesophageal reflex disease (GERD) to include gall bladder removal is remanded. Entitlement to an initial noncompensable rating for malaria residuals is remanded. Entitlement to an initial noncompensable rating for headaches is remanded. Entitlement to an initial noncompensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for right upper extremity, carpal tunnel syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1984 to February 1985 and from June 2002 to February 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2014 and May 2015 rating decisions by a regional office (RO) of the Department of Veterans Affairs (VA). In July 2019, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Regarding the Veteran’s right shoulder disability, as the maximum benefit was in effect from March 13, 2015 to July 31, 2015, the period of temporary total evaluation is not considered in this decision. Regarding right knee strain (recharacterized as total knee replacement, right knee), the Veteran opted the claim of higher rating for total knee arthroplasty right knee into the modernized review system, also known as the Appeals Modernization Act (AMA), thus the period on and after January 9, 2017 is not under consideration. 1. Entitlement to an initial rating in excess of 20 percent for residuals, right shoulder-AC separation on and after February 4, 2014 to March 12, 2015, and on and after August 1, 2015. As explained above, a temporary total evaluation was in effect from March 13, 2015 to July 31, 2015, which is not considered in this decision. He is currently assigned a 20 percent evaluation for a right shoulder disability. The Veteran was last afforded a VA examination in June 2015. At his Board hearing, the Veteran described the functional limitations in movement of his right shoulder after his operation. See Hearing Transcript at 5-6. Given his recent testimony and described symptoms, a current examination is necessary. 2. Entitlement to an initial noncompensable rating on and after February 4, 2014 to January 8, 2017 for right knee strain (recharacterized as total knee replacement, right knee). By way of history, in an August 2014 rating decision, service connection was granted for right knee strain with an initial evaluation of 0 percent effective February 4, 2014. Thereafter, he received a temporary total evaluation for total knee replacement, right knee from January 9, 2017 to April 30, 2017. As explained above, the period on and after January 9, 2017 will not be considered Pertinent to the period on appeal, the Veteran was last afforded a VA examination in June 2015. Since the last examination, the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), issued a decision finding that VA examinations for musculoskeletal conditions must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See 38 C.F.R. § 4.59. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Given that the June 2015 VA examination does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, the Board concludes that a retrospective opinion would be beneficial. 3. Entitlement to an initial rating in excess of 30 percent for cervical spine disability. 4. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain. At his hearing, the Veteran testified that his spinal condition has increased in severity over the past few years and has experienced total incapacitating episodes due to his back. See Hearing Transcript at 5. Given the Veteran’s lay statement of his worsening symptoms, the Board observes that the last VA examination of June 2015 for his neck and February 2020 for his back do not accurately reflect the current severity and manifestations of his service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, reexaminations are necessary. 5. Entitlement to an initial rating in excess of 10 percent for left elbow avulsion injury with residuals. 6. Entitlement to an initial rating in excess of 10 percent for left upper extremity, carpal tunnel syndrome. The Veteran was last afforded a VA examination in August 2014 for his elbow and peripheral nerves condition. At his hearing in July 2019, the Veteran testified that his symptoms have increased in severity for his left arm and left median nerve paralysis. See Hearing Transcript at 12, 15. Given his lay statements of worsening symptoms, reexaminations are necessary. See Snuffer, 10 Vet. App. at 403. 7. Entitlement to an initial noncompensable rating for GERD to include gall bladder removal. 8. Entitlement to an initial noncompensable rating for malaria residuals. 9. Entitlement to an initial noncompensable rating for headaches. 10. Entitlement to an initial noncompensable rating for bilateral hearing loss. The Veteran was last afforded a VA examination in August 2014 for his GERD, gall bladder, infectious disease, headaches and hearing loss. At his hearing, the Veteran stated he disagreed with the 0 percent ratings and the findings of the August 2014 VA examiner who indicated no symptoms or “inactive disease with no compensable residuals”. See Hearing Transcript at 6, 7, 8, 12, 16. Given the Veteran’s lay statement of his worsening symptoms, the Board observes that the last VA examinations of August 2014 do not accurately reflect the current severity and manifestations of his service-connected disabilities. See Snuffer, 10 Vet. App. at 403. Thus, reexaminations are necessary. 11. Entitlement to a TDIU. The Board observes that the development and readjudication of the Veteran’s appeal for increased ratings may affect his combined evaluation during the appeal period under consideration for the TDIU appeal. As such, the increased rating issues are inextricably intertwined, and adjudication of the Veteran’s TDIU appeal must be deferred at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). 12. Entitlement to service connection for right upper extremity, carpal tunnel syndrome. By rating action of August 2014, the RO initially denied service connection for carpal tunnel syndrome right upper extremity based on lack of clinical diagnosis. However, at his hearing, the Veteran indicated that carpal tunnel syndrome was in fact diagnosed for both sides and he had the same surgery in 2011 as the left upper extremity. See Hearing Transcript at 15, 19. Further, at his hearing, the Veteran raised a secondary service connection theory of entitlement that his claimed right upper extremity carpal tunnel syndrome is secondary to his back or left upper extremity. Id. at 20-21. There is no medical opinion addressing the new theory of entitlement. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). For the above reasons, and give that the Board is remanding the initial rating claims, the Board concludes that remand is warranted to obtain a new etiological opinion that takes into consideration the additional lay evidence of record and which addresses all theories of entitlement to service connection. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature, extent and severity of his back, neck, shoulder, elbow, peripheral nerves condition, GERD including gall bladder removal, malaria, headaches, and hearing loss. All required tests should be performed. The electronic claims file should be accessible to the examiner in connection with the examination. The examiner is asked to consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). A complete rationale for all findings and conclusions is requested. 2. Obtain a retrospective medical opinion regarding the severity of the Veteran’s right knee disability for the period from February 4, 2014 to January 8, 2017. To the extent possible, the examiner should provide an opinion for active motion, passive motion, and pain with weight-bearing and without weight-bearing, if possible, with range of motion measurements considering painful motion (and at what point it starts), additional loss of motion after repetitions, and functional loss due to pain. If it is not possible to provide a specific measurement without speculation, the examiner should state whether the need to speculate 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. Schedule the Veteran for an appropriate VA examination with an appropriate medical professional to determine the nature and etiology of his carpal tunnel syndrome of the right upper extremity. The Veteran’s electronic claims file should be made accessible to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. The examiner should provide an opinion as to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s carpal tunnel syndrome of right upper extremity is caused by service-connected disabilities, to include carpal tunnel syndrome of the left upper extremity or back disability? Is it at least as likely as not (50 percent or greater probability) that the Veteran’s carpal tunnel syndrome of right upper extremity is aggravated by service-connected disabilities to include carpal tunnel syndrome of the left upper extremity or back disability? 4. Upon completion of the requested development and any additional development deemed appropriate, readjudicate the claims on appeal. If the determination remains unfavorable, the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.