Citation Nr: 21027031 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 20-10 212 DATE: May 4, 2021 REMANDED Entitlement to service connection for a neck disability, to include as secondary to service-connected lumbar spine, degenerative disc disease (DDD) L5-S1 with limited motion, is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral pain disorder and synovitis, right knee, is remanded. Entitlement to a rating in excess of 10 percent for iliotibial band syndrome, right hip, is remanded. Entitlement to a rating in excess of 10 percent for right hip iliotibial band syndrome, impairment of the thigh, is remanded. Entitlement to a rating in excess of 20 percent for lumbar spine, DDD L5-S1 with limited motion, is remanded. Entitlement to an increased rating in excess of 20 percent for radiculopathy of the left lower extremity (LLE), is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service in the United States Marine Corps from June 1997 to September 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from January and October 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Service Connection Neck Disability The Veteran has contended that his neck disability is related to his active service. Specifically, he reported that his upper back pain would radiate to his neck during service. He stated that he complained of neck problems in September 2003, shortly after his separation from service. Alternatively, he asserted that his neck disability was secondary to his service-connected lumbar spine, DDD L5-S1 with limited motion. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of a neck disability. However, a review of post-service VA records showed that the Veteran felt knots in his neck in as early as September 2003. In January 2018, the Veteran was afforded a VA examination. The examiner opined the Veteran's neck disability was less likely than not incurred in or caused by his active service. She found no STR evidence of a neck disability. She noted that the Veteran first complained of neck pain after lifting a heavy object in July 2005, approximately three years post-service. A VA medical opinion was obtained in September 2018. The examiner opined that the Veteran's neck disability was less likely than not proximately due to, the result of his service-connected lumbar spine, DDD L5-S1 with limited motion. Based on a review of orthopedic literature, he stated that there was no clear evidence to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis or shortening of the injured limb or muscle resulting in length discrepancy of more than five centimeters so that an individual's gait pattern had been altered to the extent that there was an obvious Trendelenburg gait. He added that use of contralateral body components to avoid use of a painful or limited component was a natural compensation. He noted that whether the contralateral body part was capable of an increased load was a property of the contralateral body part. He explained that it was not unusual for two joints to share properties in the same person, but one joint disease did not "spread" to another or cause damage to it. He concluded that the Veteran's neck disability was due to something intrinsic to the that specific part of his anatomy. Further, he determined that the Veteran's neck disability was not aggravated or exacerbated by his service-connected lumbar spine, DDD L5-S1 with limited motion. The Board finds the January and September 2018 VA medical opinions are inadequate for adjudication purposes. In this regard, the January 2018 VA examiner's rationale is based upon an inaccurate factual premise insofar as he found that the Veteran first neck-related complaint was in July 2005. Furthermore, there is no evidence that the September 2018 VA examiner considered the Veteran's lay assertions of radiating back and neck pain during service and feeling knots in his neck in as early as September 2003. As such, the Veteran should be provided an additional VA examination to determine the nature and etiology of any currently present neck disability. 2. Entitlement to a rating in excess of 10 percent for patellofemoral pain disorder and synovitis, right knee, is denied. 3. Entitlement to a rating in excess of 10 percent for iliotibial band syndrome, right hip, is denied. 4. Entitlement to a rating in excess of 10 percent for right hip iliotibial band syndrome, impairment of the thigh, is denied. The most recent examinations to assess the nature and severity of service-connected right knee, hip, and thigh, disabilities were in July 2018, nearly three years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only are the last examinations remote, but the examinations appear to no longer indicate the current level of disability due to his right knee, hip, and thigh condition. As such, more contemporaneous examinations are needed to rate the claims for increased rating. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, the Board notes that the record reflects that the Veteran was awarded Social Security Administration (SSA) disability benefits in August 2020. Considering there may be outstanding and relevant SSA records, a remand is required to allow VA to request these records. 5. Increased Rating Lumbar Spine, DDD L5-S1 with Limited Motion The Board finds that additional development is required before the appeal is decided. The Veteran was last afforded a VA examination for his lumbar spine, DDD L5-S1 with limited motion, in January 2018. The examiner declined to include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint, as outlined in Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the Board finds that the January 2018 VA examination report is not in strict compliance with Correia, and as such, is not adequate for adjudication purposes. Accordingly, the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from his lumbar spine, DDD L5-S1 with limited motion. 6. Entitlement to an increased rating in excess of 20 percent for radiculopathy of the left lower extremity (LLE) With regards to the Veteran's claim for an increased rating for radiculopathy of LLE. The Board notes that in a June 2020 rating decision, the Veteran was granted an increased rating from 10 percent to 20 percent for the Veteran's claimed radiculopathy of the LLE. The Board finds that a 20 percent rating is not the maximum allowed schedular rating for radiculopathy, and as such, this is not considered a full grant of benefit regarding this claim. As such, the Board finds that this claim persists beyond the June 2020 rating decision. Here, as the RO failed to provide an supplemental statement of the claim (SSOC) after the June 2020 partial grant, the Board must find that remand is required for the RO to issues an SSOC addressing increased rating in excess of 20 percent for radiculopathy of the LLE. The Board additionally note that as the Veteran's claim for increased rating for a back disability is being remanded herein for additional development, such development may provide additional medical evidence regarding the Veteran's claim for radiculopathy. As such, the Board must find that these claims are considered inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (19910 (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, as the issue of increased rating for radiculopathy of the LLE cannot be adjudicated on the merits. 7. TDIU The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Hence, a determination on the matter is deferred. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for a VA examination of the service-connected disabilities of the right knee, right hip, and right thigh. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner should provide active and passive ranges of motion, and weightbearing and non-weightbearing ranges of motion, for the right knee, hip, and thigh, and should compare them to a normal opposed joint where appropriate. For each joint, the examiner should state whether there is any additional loss of function due to incoordination, fatigability, painful motion, weakened motion, excess motion, or on flare up. The examiner should state whether there is severe painful motion or weakness of the right knee. 4. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present neck disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present neck disability is etiologically related to the Veteran's active service. The examiner must specifically discuss the Veteran's lay assertion regarding radiating pain into his neck during service and the VA medical center record notation that the Veteran was feeling some knots in his neck in September 2003. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present neck disability was caused or aggravated (chronically worsened) by the Veteran's service-connected lumbar spine, DDD L5-S1 with limited motion. The rationale for all opinions expressed must be provided. 5. Schedule the Veteran for a VA examination to determine the nature and severity of service-connected disabilities of the back and radiculopathy of the left lower extremity. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner should describe the symptomatology cause by the back and left lower extremity disabilities. The examiner should provide ranges of thoracolumbar spine motion for active and passive motion and for weight-bearing and nonweight-bearing. The examiner should state whether there is any additional loss of function due to painful motion, excess motion, fatigability, incoordination, weakened motion, or on flare up. The examiner should also describe to the effect of the disabilities, if any, on the Veteran's occupational functioning and daily activities. If the Veteran is felt capable to perform occupational tasks despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.