Citation Nr: 21011821 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 18-06 364 DATE: March 2, 2021 REMANDED The claim of entitlement to service connection for temporomandibular joint dysfunction (TMJ) is remanded. The claim of entitlement to a rating in excess of 20 percent for left sided sciatica is remanded. The claim of entitlement to a rating in excess of 10 percent for lumbar spine degenerative arthritis is remanded. The claim of entitlement to a disability rating in excess of 10 percent for right ankle sprain with instability is remanded. The claim of entitlement to a compensable rating for sinusitis is remanded. The claim of entitlement to a compensable rating for status post lumbar spine scar is remanded. The claim of entitlement to a compensable rating for spermatocele, status post vasectomy, is remanded. The claim of entitlement to total rating based on individual unemployability due to service-connected disabilities (TDIU). REASONS FOR REMAND The Veteran served on active duty from March 1989 to June 1990 and from August 1999 to August 2011. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a February 2021 virtual hearing. The claim of entitlement to service connection for TMJ is remanded. The Veteran testified in 2021 that his TMJ was noted during service and continued to the present day. Review of the record reflects that his service treatment records (STRs) do show an assessment of TMJ on numerous occasions, to include in 2000, 2004, 2006, 2009, and 2011. VA conducted an examination in February 2013 to determine if the disability was present, and, if so, its etiology. The claim file was reviewed, and an in-person examination was conducted. The Veteran noted that he had had this condition since he was a young adult prior to service. He avoided chewy foods and tried not to open his mouth wide. He had most recently experienced a popping and pain episode in 2012. He was not currently experiencing any pain or residuals. Range of motion (ROM) testing of the mouth was conducted and no limitation was noted. There was no functional loss or impairment. There was, however, some clicking or crepitation of joints or soft tissues on the left side. The examiner specifically noted that TMJ was not exhibited. The Veteran had joint sounds which were not pathognomonic for TMJ. Subsequently dated VA records reflect past medical history list that includes TMJ, although current treatment for the disability is not of record. The Veteran testified that there were additional pertinent records to be obtained. The Board finds that additional VA examination and opinion is necessary. 38 C.F.R. § 3.159 (2020). The claim of entitlement to a rating in excess of 20 percent for left sided sciatica is remanded. The claim of entitlement to a rating in excess of 10 percent for lumbar spine degenerative arthritis is remanded. The claim of entitlement to a disability rating in excess of 10 percent for right ankle sprain with instability is remanded. It is the Veteran’ contention that his back disorder, sciatica, and right ankle sprain with instability have worsened since he was last examined in 2019 (spine) and ankle (2013). See 38 C.F.R. § 3.159(c)(4)(i) (2020); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). The Board notes that for increased rating musculoskeletal claims, VA examiners are required to include joint testing for pain on active and passive motion and in weight-bearing and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2020). Additionally, for increased rating musculoskeletal claims, VA examiners should obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to repeated use over time and/or flare-ups. If the examination was not conducted after repeated use over time or during a flare-up, the examiner should provide an opinion based on estimates derived from this information from the veteran as to the additional loss of range of motion that may be present. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Moreover, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed Reg. 8142, 8143 (Feb. 4, 2020) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). Additional examinations would be helpful to determine the severity of the disorders and to ensure that in the future, the Board has all information needed to properly rate the Veteran’s low back, sciatic, and right ankle under the old and revised rating criteria, where appropriate. For these reasons, contemporaneous examinations are warranted. 38 C.F.R. § 3.159 (2020). The claim of entitlement to a compensable rating for sinusitis is remanded. The Veteran testified at the hearing that his sinusitis had worsened. In his opinion, manifestations of sinusitis now met the rating criteria for a 30 percent rating. A contemporaneous examination is warranted. 38 C.F.R. § 3.159 (2020). The claim of entitlement to a compensable rating for status post lumbar spine scar is remanded. The Veteran also testified that his lumbar spine scar was on his belt line and often bothered him. Additional scar examination is necessary to assess the current severity of his status post lumbar scar. The claim of entitlement to a compensable rating for spermatocele, status post vasectomy, is remanded. The Veteran said that he experienced some pain and swelling associated with his spermatocele, status post vasectomy. A VA examination to access current manifestations of the disability is warranted. The claim of entitlement to a TDIU is remanded. At the 2021 hearing, the issue of entitlement to a TDIU was raised as a component of the increased ratings claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This claim is inextricably intertwined with the remanded issues herein. As such, the Board finds that remanding this issue for contemporaneous consideration is warranted. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all updated relevant treatment records (private and VA) and associate them with the claim file. All efforts to obtain any identified treatment records should be clearly noted in the file. 2. After the above development has been conducted, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability of the jaw. The contents of the electronic claim file, to include a copy of this remand, should be made available to and be reviewed by the examiner. The examiner should opine as to whether any disability diagnosed during the period on appeal clearly and unmistakably (undebatable) preexisted the appellant’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. If the examiner finds that any diagnosed disability of the jaw either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the in-service reports of jaw pain and diagnosis of TMJ. All clinical findings should be reported in detail with complete, clearly stated rationale for the conclusions reached. 3. The Veteran should also be scheduled for appropriate VA examinations of the spine with sciatica and right ankle. Again, the contents of the electronic claim file, to include a complete copy of this remand must be made available to and reviewed by the examiner. Thoracolumbar spine with sciatica: The examiner should conduct range of motion (ROM) testing (expressed in degrees) on both active motion and passive motion, and in both weight-bearing and non-weight bearing (as appropriate). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state and explain why. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which motion-limiting pain begins. Also, the examiner should describe the frequency, duration, characteristics, severity, and functional loss during flare-ups. If the Veteran is not examined during a flare up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also clearly identify the presence and extent of any ankylosis, and state whether any such ankylosis is favorable or unfavorable. Further, the examiner should identify and comment on the existence, frequency, or extent of, as appropriate, any neurological manifestation(s) of lumbar disability, to include sciatica of the left lower extremity (LLE) and provide an assessment of each such manifestation as mild, moderate, moderately severe, or severe. Also, considering all neurological and orthopedic findings, the examiner should render findings particularly responsive to the criteria for rating intervertebral disc syndrome (IVDS). Specifically, comment as to the existence and frequency of any of the Veteran’s incapacitating episodes (i.e. a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician) over the past 12 months. Right ankle disability: The examiner should conduct ROM testing (expressed in degrees) on both active motion and passive motion, and in both weight bearing and non-weight bearing (as appropriate). The same ROM testing should be accomplished for the left ankle for comparison purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state and explain why. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which motion-limiting pain begins. Also, the examiner should describe the frequency, duration, characteristics, severity, and functional loss during flare-ups. If the Veteran is not examined during a flare up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Also, the examiner(s) should clearly identify the presence and extent of any ankylosis, and state whether any such ankylosis is favorable or unfavorable. The examiner(s) should also comment on the expected impact that the Veteran’s orthopedic disabilities have on his ability to work, to specifically include notation of the types of employment that would be precluded and those that would remain feasible. All clinical findings should be reported in detail with complete, clearly stated rationale for the conclusions reached. 4. The Veteran should also be scheduled for an appropriate examination to determine the current severity of his chronic sinusitis. The contents of the electronic claim file, to include a copy of this remand, should be made available to and be reviewed by the examiner. The examiner should identify all pertinent findings and features associated with the Veteran’s sinusitis, to specifically include the frequency and severity of the Veteran’s episodes of sinusitis pursuant to the General Rating Formula for Sinusitis in 38 C.F.R. § 4.97 (2020). The examiner should also comment on the expected impact that the Veteran’s sinusitis would have on his ability to work, to specifically include notation of the types of employment that would be precluded and those that would remain feasible. All clinical findings should be reported in detail with complete, clearly stated rationale for the conclusions reached. 5. The Veteran should also be scheduled for an appropriate examination to determine the current severity of his lumbar spine scar. The contents of the electronic claims file, to include a copy of this remand, should be made available to and be reviewed by the examiner. The examiner should indicate all symptomatology associated with the lumbar spine scar and address any functional impairment caused by this disability. All clinical findings should be reported in detail with complete, clearly stated rationale for the conclusions reached. 6. The Veteran should also be scheduled for an appropriate examination to determine the current severity of his spermatocele, status post vasectomy. The contents of the electronic claims file, to include a copy of this remand, should be made available to and be reviewed by the examiner. The examiner should indicate all symptomatology associated with the lumbar spine scar and address any functional impairment caused by this disability. All clinical findings should be reported in detail with complete, clearly stated rationale for the conclusions reached. 7. After completing the development outlined in this remand, and any additionally indicated development, readjudicate the claims on appeal, to include the inextricably intertwined issue of entitlement to a TDIU. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case (SSOC) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.