Citation Nr: 21009604 Decision Date: 02/23/21 Archive Date: 02/22/21 DOCKET NO. 16-21 776 DATE: February 23, 2021 REMANDED Entitlement to a rating in excess of 30 percent for the service-connected asthma (reactive airway disease) is remanded. Entitlement to a rating in excess of 30 percent for the service-connected panic disorder with agoraphobia features is remanded. A rating in excess of 10 percent for the service-connected right knee degenerative joint disease, status post ACL reconstruction surgeries, is remanded. A rating in excess of 10 percent for the service-connected left knee chondromalacia, status post surgeries, is remanded. A rating in excess of 20 percent for the service-connected right shoulder rotator cuff tendinopathy, status post torn rotator cuff surgeries, is remanded. A rating in excess of 20 percent for the service-connected thoracolumbar spine strain with degenerative disc disease is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from October 1987 to September 1991 and from May 1994 to June 2010. In July 2019, the Board of Veterans’ Appeals (Board) issued a decision denying ratings in excess of 30 percent each for asthma and a panic disorder with agoraphobia features. Thereafter, the Veteran appealed such aspects of the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated the Board’s decision as to such claims and remanded the case for further consideration. The same July 2019 Board decision also remanded the Veteran’s claims for increased ratings for his service-connected right knee, right shoulder, and thoracolumbar spine disabilities, as well as for a TDIU for further development, which the Regional Office (RO) asserts has been completed. As such, all issues, including both those remanded and those denied in the July 2019 Board decision, are properly again before the Board at this time. In addition, the issue of entitlement to a rating in excess of 10 percent for the service-connected left knee chondromalacia, status post surgeries, was certified to the Board in October 2016, after the Veteran properly affected an appeal on this issue. Although it was not discussed in the prior Board decision, the issue remains on appeal and is also properly before the Board at this time. The Board notes that the appeal for a higher rating for the Veteran’s service-connected thoracolumbar spine disability was addressed in the July 2019 Board remand as two separate issues which separated distinct stages of ratings of the condition during the period on appeal. On remand, however, the RO restored the previously reduced 20 percent rating for the Veteran’s thoracolumbar spine from May 10, 2016. As such, the rating for this disability is no longer staged, and the issue has been recharacterized as above to accurately reflect the issue on appeal. Entitlement to a rating in excess of 30 percent for the service-connected asthma (reactive airway disease) The Veteran seeks a higher rating for his asthma disability. He was last examined by VA for the severity of this condition in December 2011, nearly ten years ago. Thus, on remand, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of this disability. Entitlement to a rating in excess of 30 percent for the service-connected panic disorder with agoraphobia features The Veteran also seeks a higher rating for his service-connected psychiatric disability. He was last examined for the severity of this condition in May 2016. The Court found this examination to be inadequate because the examiner failed to consider the Veteran’s treatment history of anxiety and lay statements. (See July 2020 JMPR). As such, the Veteran should be afforded a new VA psychiatric examination which adequately considers the Veteran’s history of anxiety and addresses his lay statements in assessing the severity of his service-connected psychiatric disability. Entitlement to a rating in excess of 10 percent for the service-connected right knee degenerative joint disease, status post ACL reconstruction surgeries The Veteran also seeks a higher rating for his service-connected right knee disability. The Board remanded the issue in July 2019 for a VA examination to be obtained which complied with the requirements in Correia v. McDonald, 28Vet. App.158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). A VA knee and lower leg conditions examination was obtained in December 2019, with an addendum opinion subsequently rendered in August 2020. As to the Correia requirements, the December 2019 VA examination report states that pain with passive range of motion testing was not performed for the Veteran’s right knee because his movement was voluntarily guarded, and that such a test would be detrimental to his current knee condition. However, she did not provide any explanation as to why such a test would be detrimental, when all other range of motion tests were performed without issue. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. For the above reasons, the RO failed to comply with the 2019 Board remand with regard to this claim, and the Board has no recourse but to remand this claim again to ensure that the previously requested development is completed. See id. Further, as to the Sharp requirements, the Board notes that the examiner declined to comment on the severity of the Veteran’s right knee flare ups, because the Veteran did not report flare ups on examination in December 2019. (See August 2020 VA knee and lower legs conditions examination addendum opinion). However, she did note that flare ups were previously reported during the appeal period. As such, a new examination is needed for an examiner to attempt to elicit information from the Veteran in order to make an estimate regarding the Veteran’s functional loss during flare ups which occurred at any point during the appeal period. Although this was not explicitly asked by the prior Board remand, the Board finds that this information is needed before it can render a decision in this claim. Entitlement to a rating in excess of 10 percent for the service-connected left knee chondromalacia, status post surgeries The Veteran also seeks a higher rating for his service-connected left knee disability. This issue was not addressed in the 2019 Board remand. However, that remand discussed deficiencies in the record for the Veteran’s right knee disability which also apply to his left knee disability. There is no VA examination of record which complies with the requirements of Correia and Sharp with regard to the Veteran’s left knee disability. See Correia, 28 Vet. App. at 168-70; see also Sharp, 29 Vet. App. at 32, 34-35. As such, a new VA examination is needed to assess the current severity of the Veteran’s left knee disability and to provide opinions compliant with the requirements of Correia and Sharp. Entitlement to a rating in excess of 20 percent for the service-connected right shoulder rotator cuff tendinopathy, status post torn rotator cuff surgeries The Veteran also seeks a higher rating for his service-connected right shoulder disability. As with the Veteran’s claim for an increased rating for his right knee disability, the Board remanded this issue in July 2019 for a VA examination to be obtained which complied with the requirements in Correia and Sharp. See Correia, 28 Vet. App. at 168-70; see also Sharp, 29 Vet. App. at 32, 34-35. A VA shoulder and arm conditions examination was obtained in December 2019, with an addendum opinion subsequently rendered in August 2020. As to the Correia requirements, the December 2019 examination report states that pain with passive range of motion testing was not performed for the Veteran’s right shoulder. No explanation was given as to why this test was not performed. As previously discussed, compliance with remand instructions is neither optional nor discretionary. Stegall, 11 Vet. App. at 271. The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. For the above reasons, the RO failed to comply with the 2019 Board remand with regard to this claim, and the Board has no recourse but to remand this claim again to ensure that the previously requested development is completed. See id. Further, as to the Sharp requirements, the Board notes that the examiner declined to comment on the severity of the Veteran’s right shoulder flare ups, because the Veteran did not report flare ups on examination in December 2019. (See August 2020 VA shoulder and arm conditions examination addendum opinion). However, she did note that flare ups were previously reported during the appeal period. As such, a new examination is needed for an examiner to attempt to elicit information from the Veteran in order to make an estimate regarding the Veteran’s functional loss during flare ups which occurred at any point during the appeal period. Although this was not explicitly asked by the prior Board remand, the Board finds that this information is needed before it can render a decision in this claim. Entitlement to a rating in excess of 20 percent for the service-connected thoracolumbar spine with degenerative disc disease The Veteran also seeks a higher rating for his service-connected thoracolumbar spine disability. The Board remanded this claim in July 2019 for a VA examination to be obtained which complied with the Sharp requirements for flare ups the Veteran experienced or ever had experienced during the period on appeal. A VA back (thoracolumbar spine) conditions examination was obtained in December 2019, with an addendum opinion subsequently rendered in August 2020. The examiner, however, did not elicit information from the Veteran at the December 2019 VA examination in order to make an estimate regarding the Veteran’s functional loss during flare ups which occurred at any point prior to the examination. In the August 2020 addendum opinion, the examiner noted the Veteran’s reports of flare-ups in his back in 2011, but stated the degree of functional loss was not described with enough specificity in the record for her to be able to estimate additional functional loss during flares. As such, she did not attempt to elicit this information directly from the Veteran. Again, compliance with remand instructions is neither optional nor discretionary. Stegall, 11 Vet. App. at 271. The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. For the above reasons, the RO failed to comply with the 2019 Board remand with regard to this claim, and the Board has no recourse but to remand this claim again to ensure that the previously requested development is completed. See id. Further, the December 2019 VA thoracolumbar spine examination report states that the Veteran told the examiner that if he twisted his back in certain ways, pain would shoot down his legs, which indicates there may be some radiculopathy associated with the Veteran’s service-connected back disability. However, in the “Radiculopathy” section of the examination report, the examiner stated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. On remand, the examiner must explicitly discuss whether the Veteran’s reports of pain shooting down his legs from his spine is indicative of radiculopathy associated with his service-connected back disability, and explain why, if applicable, such complaints do not indicate associated radiculopathy. On a final note, the Board recognizes that the December 2019 VA examination report also notes that the Veteran declined to perform some of the range of motion tests for his thoracolumbar spine, stating, “I cannot and will not twist side-to-side. I am in too much pain.” In this regard, the Board hereby notifies the Veteran that, while VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he/she also has a duty to assist and cooperate with the VA in developing evidence. In other words, VA’s duty to assist is not a one-way street. If a veteran wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). VA’s duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). As such, to the extent that he is physically capable, the Veteran must make reasonable efforts to assist VA in determining his level of functional limitation on VA examination. Entitlement to a TDIU The Veteran’s claim for a TDIU is inextricably intertwined with the other claims being remanded herein. Therefore, the Board finds that the claim for a TDIU must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, these matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his asthma. The Veteran’s claims file should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran’s asthma and report all signs and symptoms associated with the disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s asthma alone and discuss the effect of this disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 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 that particular question. 2. Also, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected panic disorder with agoraphobia features. The Veteran’s claims file should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner must ensure to consider adequately the Veteran’s history of anxiety and address his lay statements in assessing the severity of his psychiatric condition. The examiner should provide a full description of this service-connected psychiatric disability and report all signs and symptoms associated with the disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s service-connected psychiatric disability alone and discuss the effect of this disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 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 that particular question. 3. Also, schedule the Veteran for an appropriate examination to determine the current severity of his service-connected right and left knee disabilities. The examiner should review the claims file in conjunction with the examination. All necessary tests should be completed, and all pertinent pathology associated with these service-connected disabilities—to include, but not limited to, any limitation of motion of the Veteran’s knees—should be annotated in the examination report. The examiner must also ensure to test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing for each knee. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare-ups. If the Veteran does not report experiencing flare-ups at the time of the examination, the examiner should attempt to elicit such information on flare-ups the Veteran has previously experienced during the appeal period (from September 2011 to present). To the extent possible, the examiner should identify any symptoms and functional impairments due to these service-connected disabilities alone and discuss the effect of the disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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). 4. Also, schedule the Veteran for an appropriate examination to determine the current severity of his service-connected right shoulder disability. The examiner should review the claims file in conjunction with the examination. All necessary tests should be completed, and all pertinent pathology associated with this service-connected disability—to include, but not limited to, any limitation of motion of the Veteran’s right shoulder—should be annotated in the examination report. The examiner must also ensure to test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing for the right shoulder. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare-ups. If the Veteran does not report experiencing flare-ups at the time of the examination, the examiner should attempt to elicit such information on flare-ups the Veteran has previously experienced during the appeal period (from September 2011 to present). To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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). 5. Also, schedule the Veteran for an appropriate examination to determine the current severity of his service-connected thoracolumbar spine disability. The examiner should review the claims file in conjunction with the examination. All necessary tests should be completed, and all pertinent pathology associated with this service-connected disability—to include, but not limited to, any limitation of motion of the Veteran’s thoracolumbar spine—should be annotated in the examination report. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare-ups. If the Veteran does not report experiencing flare-ups at the time of the examination, the examiner should attempt to elicit such information on flare-ups the Veteran has previously experienced during the appeal period (from September 2011 to present). To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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). The examiner should also specifically address the Veteran’s reports of pain shooting down his legs from his back and whether this amounts to radiculopathy associated with his service-connected thoracolumbar spine disability. A rationale should be provided if the examiner determines the Veteran does not have associated radiculopathy, in light of these complaints. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.