Citation Nr: 21009378 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-14 936 DATE: February 22, 2021 REMANDED Entitlement to service connection for deep vein thrombosis (DVT) of the left lower extremity, claimed as blood clots, is remanded. Entitlement to an increased rating in excess of 10 percent prior to December 18, 2018 and 20 percent thereafter for right knee strain with degenerative arthritis based upon motion loss is remanded. Entitlement to an increased rating for lumbosacral strain with degenerative changes, currently rated as 20 percent disabling, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) exclusively based on service-connected lumbosacral strain with degenerative changes from March 2, 2016 is remanded. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1979 to April 1988. This case originally came to the Board of Veterans' Appeals (Board) on appeal from June 2013 and May 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In September 2019, the Board issued a decision, which in pertinent part, denied service connection for DVT, partially granted an increased rating for right knee strain based upon motion loss, and granted entitlement to TDIU from March 2, 2016. It remanded the increased rating claim for lumbosacral strain. The Veteran appealed the portion of the September 2019 Board decision denying the above issues to the United States Court of Appeals for Veterans Claims (Court). Before the Court issued a decision, the parties filed a joint motion for partial remand (JMPR) that vacated the September 2019 Board decision with respect to the above denied issues and remanded them to the Board for adjudication consistent with the JMPR instructions. The Court granted the JMPR in July 2020, and the case has returned to the Board. The July 2020 JMPR found that the issue of entitlement to SMC under 38 U.S.C. § 1114(s) was raised by the record, and the Board has added it as a separate issue on appeal. The Board has included an increased rating for lumbosacral strain as an issue even though the requested development from the September 2019 Board remand remains pending. This issue is intertwined with the above TDIU and SMC claims and must be resolved before adjudicating these claims. Entitlement to service connection for deep vein thrombosis (DVT) of the left lower extremity, claimed as blood clots, is remanded. Entitlement to an increased rating in excess of 10 percent prior to December 18, 2018 and 20 percent thereafter for right knee strain with degenerative arthritis based upon motion loss is remanded. The July 2020 JMPR found that additional action was needed to fully resolve due process and duty to assist issues for these claims. For the service connection claim, the July 2020 JMPR found that additional pertinent evidence had been received following the January 2016 statement of case (SOC) and a waiver of review by the agency of original jurisdiction (AOJ) was required. See 38 C.F.R. § 20.1304(c). To remedy this deficiency, the AOJ must issue a supplemental statement of the case (SSOC) for this issue with review of all evidence received since January 2016. For both claims, the July 2020 JMPR found that the record included evidence of relevant outstanding private medical records, and VA had not made sufficient efforts to obtain these identified, relevant private medical records. 38 C.F.R. § 3.159(c)(3), (e)(2). Appropriate development to obtain these private medical records is requested below. Entitlement to an increased rating for lumbosacral strain with degenerative changes, currently rated as 20 percent disabling, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) exclusively based on service-connected lumbosacral strain with degenerative changes from March 2, 2016 is remanded. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is remanded. The July 2020 JMPR found that entitlement to SMC(s) through a TDIU exclusively based upon service-connected lumbosacral strain with degenerative changes (back disability) was raised by the record. See Bradley v. Peake, 22 Vet. App. 280, 289-94 (2008); see also 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). There was evidence suggesting the service-connected lumbosacral strain with degenerative changes (back disability) alone precluded the Veteran from securing and following gainful employment. The supporting evidence cited by the July 2020 JMPR included January 2018 Social Security Administration (SSA) work history reports, April 2016 VA back examination report, and March 2007 Veteran’s statements. As noted in the introduction, there is an increased rating claim for lumbosacral strain pending development from the September 2019 Board remand. This claim must first be resolved before adjudicating the above single disability TDIU claim since the service-connected lumbosacral strain is currently rated as 20 percent disabling. Unless a rating of at least 60 percent from March 2, 2016 is awarded for lumbosacral strain, this single disability TDIU claim may only be considered under 38 C.F.R. § 4.16(b). The Board is not permitted to adjudicate TDIU claims under 38 C.F.R. § 4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Give the above, the development and readjudication for the lumbosacral strain increased rating claim must first be completed as instructed below. If the lumbosacral strain rating remains less than 60 percent from March 2, 2016, refer entitlement to a TDIU exclusively for service-connected lumbosacral strain with degenerative changes on an extraschedular basis under 38 C.F.R. § 4.16(b) to the Director, Compensation Service. Id. The issue of SMC pursuant to 38 U.S.C. § 1114(s) is intertwined with the resolution of the above TDIU claim and the Board will defer adjudication until it is resolved. See Harris v. Derwinski,1 Vet. App. 180, 183 (1991). These matters are REMANDED for the following action: 1. Furnish appropriate authorizations for the release of medical records from Dr. D.D., Hematology and Oncology Associates, and the private orthopedist who was identified to the July 2016 VA kinesiotherapy clinician and instruct the Veteran on how to complete and submit the authorization forms. Alternatively, advise the Veteran that he may submit any medical records in his possession directly to VA. 2. For the increased rating claim for lumbosacral strain, request that the Veteran identify or submit medical evidence regarding physician-direct bed rest as a low back pain treatment method and if possible, have the treating clinician state the frequency of prescribed bed rest periods for incapacitating low back pain episodes during the past 12 months. Take appropriate action based upon his response. 3. Arrange for the Veteran to undergo a VA examination or if feasible, telehealth examination, to evaluate the severity of his service-connected lumbar spine disability. The record must be made available to, and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Then, to the extent possible, the clinician should review the lumbar spine range of motion studies from the April 2016 VA examination report and estimate the lumbar spine motion loss during repetitive use over time. If the examiner is unable to estimate lumbar spine motion loss in terms of degrees during periods of repetitive use or flare-ups either upon current examination or from the prior examination, he or she must provide a clear explanation and state whether such inability to estimate lumbar spine motion loss in terms of degrees is due to a lack of knowledge by the individual examiner or among the medical community at large. 4. Then after completion of the above instructions, readjudicate the service connection and increased rating claims. 5. Then, if following readjudication, the lumbosacral strain disability rating remains less than 60 percent since March 2, 2016, refer the issue of entitlement to TDIU based on service-connected lumbosacral strain with degenerative changes to the Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.