Citation Nr: 21024060 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-00 316 DATE: April 22, 2021 REMANDED Entitlement to service connection for a right ankle condition, to include degenerative joint disease, to include as secondary to residuals of a T8 vertebra fracture is remanded. Entitlement to service connection for a right hip condition to include as secondary to residuals of a T8 vertebra fracture is remanded. Entitlement to service connection for a left hip condition, to include as secondary to residuals of a T8 vertebra fracture is remanded. Entitlement to service connection for a right knee condition, to include as secondary to residuals of a T8 vertebra fracture is remanded. Entitlement to service connection for a left knee condition, to include as secondary to residuals of a T8 vertebra fracture is remanded. Entitlement to service connection for a bilateral foot disorder with heel spurs, to include as secondary to residuals of a T8 vertebra fracture is remanded. Entitlement to a rating higher than 40 percent for residuals of a T8 vertebra fracture with incomplete paraplegias is remanded. Entitlement to a disability rating higher than 20 percent prior to December 7, 2019, and to a disability rating higher than 40 percent from that date, for left lower extremity sciatic radiculopathy, associated with residuals of the fracture of the T8 vertebra, is remanded. Entitlement to a separate disability rating higher than 30 percent for femoral nerve radiculopathy of the left lower extremity, associated with residuals of a fracture of the T8 vertebra, is remanded. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to August 27, 2012, is remanded. Entitlement to Dependents' Education Assistance (DEA) benefits prior to August 27, 2012, is remanded. REASONS FOR REMAND The Veteran had active service from March 1973 to May 1975. This current appeal before the Board of Veterans’ Appeals (Board) arose from March 2008, April 2011, and September 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a hearing before the Board when he filed his substantive appeal but withdrew his hearing request in January 2019 correspondence. In December 2008 the Board remanded the Veteran’s TDIU claim to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. In June 2019, the Board remanded all matters that are currently before the Board to the AOJ for further development. Service connection for right ankle, right hip, left hip, right knee, left knee, and bilateral foot conditions Pursuant to the Board’s June 2019 remand, the Veteran was afforded a VA-contracted examination for his claimed right ankle, right and left hip, right and left knee, and bilateral foot conditions in December 2019. The rationales provided in support of the December 2019 examiner’s opinions, however, are not sufficient for the Board to properly adjudicate these matters. In the opinions regarding whether these conditions were at least as likely as not incurred in or caused by the Veteran’s service, the only rationale provided by the examiner was that there was no documentation of these conditions during the Veteran’s service. While this may constitute supporting evidence for the proposition that these conditions did not become manifest during service, the lack of documentation of these conditions during service is not, by itself, a sufficient rationale that these conditions are not the result of an in-service injury or event, such as, in this case, a severe automobile accident in 1974. The opinion regarding the etiology of the right ankle is also self-contradictory, where the examiner indicated that there was no evidence of ankle or foot pain while in service and later stating that this condition is less likely than not incurred in or caused by the bilateral ankle during service, seeming to state that there was both no injury to the ankle during service and injury to both ankles during service in the same rationale. The examiner also appears to have relied, in part, on at least a conditional acceptance of the Veteran’s contention that these conditions were the result of his in-service motor vehicle accident in opining that these conditions were not caused or aggravated by the Veteran’s service-connected residuals of the T8 vertebra fracture, noting that if it were the case that these conditions were the result of the accident, then the T8 vertebra fracture would not have aggravated these conditions. If this were indeed the case, the conditions would be eligible for service connection as a result of an in-service event, the car accident. Also, this does not constitute a clear rationale, as the opinion appears to state that if the Veteran initially sustained these injuries in the motor vehicle accident, then there would be no contention that the service-connected T8 vertebra fracture and residuals would have then subsequently aggravated them. The Board observes that the examiner’s rationale does not explain why injuries theoretically sustained in a motor vehicle accident could not then later be aggravated by residuals of a T8 fracture that was sustained at the same time. Further, the examiner does not appear to consider that the Veteran, as a lay person, has expressed his belief that the disabilities could directly be the result of the accident, or, alternatively, secondarily the result of the T8 vertebra fracture. Finally, this rationale does not address the theory that the residuals of the T8 fracture that led to a long-sustained injury and paraplegias left his lower body in such a condition that these conditions were either caused or aggravated by the residuals of the Veteran’s T8 vertebra fracture. Indeed, the examiner did not provide clear opinions as to whether these claimed conditions were caused or aggravated by the service-connected T8 vertebra fracture, as the Board directed in the January 2020 remand. A remand by the Board confers on a claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Higher rating for residuals of T8 vertebra fracture with incomplete paraplegias The Board remanded the Veteran’s higher disability rating claim for his service-connected left shoulder disability in June 2019 to afford him a contemporaneous VA examination to obtain additional information regarding the Veteran’s ranges of motion in active and passive motion, and to obtain information pertaining to reported flare-ups of the thoracolumbar spine disability. The Veteran was afforded a VA-contracted examination in December 2019. The examiner, however, did not provide the results of range of motion testing on passive motion or the results in weight-bearing versus non-weight bearing, in accordance with Correia v. McDonald, 28 Vet. App. 158 (2016). While the examiner indicated that passive range of motion could not be performed, she did not indicate why. Additionally, the December 2019 examiner did not provide information with respect to the severity, frequency, and duration of reported flare-ups of the thoracolumbar spine disability as the Board directed in the remand. See Stegall, 11 Vet. App. at 271; see also Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Higher ratings for left lower extremity sciatic and femoral radiculopathy and entitlement to SMC Where development of the remanded service connection claims and higher rating claim for residuals of a T8 vertebra fracture may likely yield evidence relevant to the decision on the issues of entitlement to increased ratings for left lower extremity sciatic and femoral nerve radiculopathy, and to entitlement to SMC based on the need for aid and attendacne, the issues are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Accordingly, consideration of these claims must be deferred until the intertwined issues have either been resolved or prepared for appellate consideration. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). TDIU and DEA benefits prior to August 27, 2012 The June 2019 Board remand found that the Veteran’s condition did not meet the schedular criteria for a TDIU prior to August 27, 2012. As pointed out in a January 2021 Memorandum issued by the Director, Compensation Service, however, the Veteran’s 1974 automobile accident resulted in a closed head injury, fracture of the mandible, and a T8 vertebra fracture. These injuries, in turn, resulted in compensable service-connected disabilities of (1) residual of a T8 vertebra fracture, (2) right ear hearing loss, (3) vertigo and loss of balance, (4) resection of the T7 rib, and (5) a mandibular fracture, all as of the date that the Veteran filed his claim for TDIU in May 2007. These disabilities were rated 40 percent, 10 percent, 10 percent, 10 percent, and 10 percent, respectively, thus combining to a disability rating of 60 percent as of February 4, 2005. VA regulations provide that disabilities resulting from a common etiology or single accident can be treated as a single disability for the purpose of either a single 60 percent disability necessary to meet the schedular criteria for TDIU. 38 U.S.C. § 501; 38 C.F.R. § 4.16(a)(2). Consequently, the Veteran’s disabilities have met the schedular percentage requirement for a TDIU since February 4, 2005. Nonetheless, in spite of this finding, a decision on this matter cannot be reached at this time because a decision on the higher rating claims remanded herein are likely to impact a decision on the TDIU claim. See Harris, supra. Similarly, because a decision on the remanded TDIU issue could impact a decision on the claim for DEA benefits prior to August 27, 2012, these issues are also inextricably intertwined. See Harris, supra. Accordingly, consideration of these issues must also be deferred pending appropriate adjudication. The matters are REMANDED for the following actions: 1. Arrange for the Veteran’s claims file to be reviewed by a new VA examiner to obtain new opinions as to the etiology of the claimed right ankle, right hip, left hip, right knee, left knee, and bilateral foot conditions. The claims file and a copy of this REMAND should be made available to the examiner for review. If the examiner determines that a new examination is warranted in order to provide the requested etiology opinion, arrange for the Veteran to be afforded such examination. If the Veteran is examined, any and all indicated studies and tests deemed necessary by the examiner should be accomplished. After review of the record, and completion of any examination (including any necessary tests and studies), for each current right ankle, right hip, left hip, right knee, left knee, and bilateral foot condition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that such condition had its onset during service, or is otherwise medically-related to the Veteran’s service, to include his in-service car accident. Alternatively, for each current right ankle, right hip, left hip, right knee, left knee, and bilateral foot condition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the disability was caused, or aggravated (made worse) beyond its natural progression by the Veteran’s service-connected T8 vertebra fracture residuals. In addressing the above, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include competent, lay assertions as to the nature, onset, and continuity of symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. A complete rationale must be provided for each opinion, and the examiner is advised that the length of time between a claimed injury and the first time it is recorded in a medical record is not by itself a sufficient rationale for a negative opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected residuals of a T8 vertebra fracture. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating each disability under the pertinent rating criteria. The examiner should test the range of motion and pain in the Veteran’s thoracolumbar spine in active and passive motion, and in weight-bearing and non-weight bearing (with results expressed in degrees). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner must attempt to elicit information regarding the severity, frequency, duration, and characteristics of reported flare-ups of the thoracolumbar spine disability, and the degree of functional loss during flare-ups. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use over time, due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion, must also be noted. The examiner must offer an opinion as to whether there would be additional limits on functional ability during reported flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation in range of motion beyond that shown clinically. With respect to noted radiculopathy into the right lower extremity, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability) that such radiculopathy is associated with the Veteran’s service-connected residuals of a T8 vertebra fracture. The clinician should explain the difference in the etiology between the left and right lower extremity radiculopathies, as appropriate. A clear explanation for all opinions expressed would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide a requested opinion, he or she should explain why. 3. After all necessary development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to increased ratings for left lower extremity sciatic and femoral radiculopathy, entitlement to SMC based on the need for aid and attendance, and entitlement to a TDIU and DEA benefits prior to August 27, 2012. Michael L. Wilson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.