Citation Nr: 21025835 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-34 516 DATE: April 29, 2021 REMANDED Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the right upper extremity is remanded. Entitlement to an evaluation in excess of 20 percent for cervical disc disease is remanded. Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the right shoulder is remanded. Entitlement to a temporary total evaluation for surgical treatment for degenerative spondylosis of the lumbar spine is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1978 to November 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2016 and September 2016 decisions. The Veteran presented testimony before the Board in April 2021. During the hearing, the Veteran raised a claim for TDIU as part and parcel of the increased rating claims presently on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). All issues are remanded The Board has identified relevant outstanding private treatment records, to include: compterized tomography (CT) report of the cervical spine dated in August 2015 from the UMMC Neurosurgery Department in Jackson, Mississippi; the December 8, 2015, anterior lumbar interbody fusion surgical report from Merrit Health River Oaks Hospital in Jackson, Mississippi; the Mississippi Sports Medicine and Orthopaedic Center dated from November 2016 to the present; and the April 29, 2021, surgical report of the cervical spine. A remand is required to allow VA to obtain authorization and request these records. The last VA treatment records associated with file are dated in April 2018. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The Veteran testified that his right upper extremity radiculopathy, cervical disc disease, and right shoulder have worsened in severity since his last VA examinations in March 2016 and June 2016. The Board notes the Veteran submitted cervical spine and right shoulder disability benefits questionnaires (DBQ) in May 2020; however, they are inadequate. Notably, the cervical spine DBQ did not conduct range of motion testing but simply referenced testing in 2019, which is not of record and presumably is included in the missing treatment records identified above. Moreover, neither DBQ meets the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) or Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). Finally, neither the 2016 examination reports nor the May 2020 DBQs adequately address whether the current symptoms and/or severity of the disabilities are causally connected to the service-connected conditions or rather due to intercurrent injury caused by the post-service motorcycle accident in May 2015. For these reasons, remand is necessary for VA to obtain VA examinations that comply with the holdings in Sharp and Correia and to assess the current level severity of the cervical spine, right shoulder, and right upper extremity disabilities on appeal. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  The Veteran is seeking a TDIU. A decision on the remanded issues for increased rating, could significantly impact a decision on this issue. Thus, the matters are inextricably intertwined, and a remand of the claim is required. In addition, on remand the RO should obtain a completed Form 21-8940, information from his last employer, and an opinion to assess the functional impairments, if any, of the Veteran’s disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2018 to the present. 2. Ask the Veteran to complete VA Forms 21-4142 for private treatment records, to include: the August 2015 CT report of the cervical spine from UMMC Neurosurgery Department in Jackson, Mississippi; the December 8, 2015, anterior lumbar interbody fusion surgical report from the Merrit Health River Oaks Hospital in Jackson, Mississippi; the Mississippi Sports Medicine and Orthopaedic Center dated from November 2016 to the present; and the April 29, 2021, surgical report of the cervical spine Make two requests for the authorized records from the private providers, unless it is clear after the first request that a second request would be futile. 3. The RO must request the Veteran to complete a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) in an attempt to ascertain specific information and circumstances of the Veteran’s last full-time employment, to include his level of education, occupation, type of activities performed, his last day of full-time employment, and the date he became too disabled to work. 4. The RO must request from the Veteran that his last employer complete VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits).  5. Schedule the Veteran for a VA peripheral nerves examination to evaluate the current level of severity of his right upper extremity radiculopathy disability on appeal. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. The examiner should provide a detailed report of the Veteran’s radiculopathy and any findings from diagnostic/imaging studies must be included in the examination report. The examiner must also conduct any necessary testing, to include EMG studies.  The examiner must discuss the post-service May 2015 motorcycle accident and indicate whether it is possible to distinguish the severity of the condition before and after the accident and if possible, state which symptoms are attributable to the service-connected disability and which are attributed to the post-service injury. If no such distinction of symptoms is possible, this should be stated in the report. Provide a rationale to support any opinion expressed. 6. Schedule the Veteran for VA examinations to evaluate the current level of severity of the cervical spine and right shoulder disabilities on appeal. The claims folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. a) The examiner is asked specifically to provide range of motion testing (ROM) for the cervical spine and right shoulder for active motion, passive motion, in both weight-bearing, and nonweight-bearing. b) In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use; and, identify at the point where pain starts. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM, to include noting the exact point at which pain starts. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. c) In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ROM testing of the cervical spine and right shoulder, if pain is noted, the exact point at which pain is first noted must be specified. (d) The examiner must review the claims file and elicit information regarding the severity, frequency, and duration of all symptoms during flare-ups and repeated use over time, and the degree of functional loss during flare-ups and/or repeated used over time.  If possible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran unless deemed to lack credibility or be inconsistent with other evidence such as test results.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. e) The examiner must discuss the post-service May 2015 motorcycle accident and indicate whether it is possible to distinguish the severity of the right shoulder and cervical spine conditions before and after the accident and if possible, state which symptoms are attributable to the service-connected disabilities and which are attributed to the post-service injury. If no such distinction of symptoms is possible, this should be stated in the report. Provide a rationale to support any opinion expressed. f) Any findings from diagnostic/imaging studies must be included in the examination report and specifically indicate whether there is intervertebral disc syndrome shown by disc herniation with compression and/or irritation of the adjacent nerve root on imaging studies. 7. Obtain an opinion from an appropriate clinician regarding the functional limitations on employability caused by the Veteran’s service-connected disabilities. The need for any additional clinical evaluations is left to the discretion of the medical professional rendering the opinion. A complete copy of the claims file must be made available to the examiner and the examination report should specifically state that a review of the record was conducted. After a thorough review of the medical and lay evidence of record, the examiner should discuss the functional effects of the Veteran’s service-connected disabilities on his ability to perform the physical and mental acts, as appropriate, required to sustain substantially gainful employment consistent with his education and occupational experience. This discussion should include both sedentary and non-sedentary labor. Provide a rationale to support any opinion expressed. 8. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.