Citation Nr: 21027878 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-29 770 DATE: May 7, 2021 REMANDED Entitlement to an initial rating compensable disability rating prior to August 6, 2020 and a rating in excess of 50 percent thereafter for bilateral pes planus and plantar fasciitis is remanded. Entitlement to an initial rating in excess of 10 percent prior to August 6, 2020 and a rating in excess of 30 percent thereafter for gastroesophageal reflex disease (GERD) is remanded. Entitlement to an initial rating in excess of 10 percent prior to August 6, 2020 and a rating in excess of 20 percent thereafter for lumbar spine disability is remanded. Entitlement to an initial rating in excess of 10 percent prior to August 6, 2020 and a rating in excess of 20 percent thereafter for left shoulder disability is remanded. Entitlement to an initial rating in excess of 10 percent for cervical spine disability is remanded. Entitlement to an initial rating in excess of 10 percent for left wrist disability is remanded. Entitlement to an initial compensable disability rating prior to August 6, 2020 and a rating in excess of 10 percent thereafter right wrist is remanded. Entitlement to an initial compensable disability rating for right hand, arthritis of the index finger is remanded. Entitlement to an initial compensable disability rating for right hand, arthritis of the long finger is remanded. Entitlement to an initial compensable disability rating for right hand, arthritis of the ring finger is remanded. Entitlement to an initial compensable disability rating for right hand, arthritis of the little finger is remanded. Entitlement to an initial compensable disability rating for left hand, arthritis of the left thumb is remanded. Entitlement to an initial compensable disability rating for left hand, arthritis of the ring finger is remanded. Entitlement to an initial compensable disability rating for left hand, arthritis of the little finger is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1985 to July 1989 and from January 1994 to March 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in June 2020 where it was remanded for further development. 1. Entitlement to an initial rating compensable disability rating prior to August 6, 2020 and a rating in excess of 50 percent thereafter for bilateral pes planus and plantar fasciitis. In compliance with the Board's June 2020 remand, the Veteran was afforded a VA examination in August 2020 for his bilateral pes planus and plantar fasciitis. Thereafter, in a September 2020 rating decision, based on the findings of the recent VA examination, the AOJ increased the 0 percent rating to 50 percent, effective August 6, 2020, a partial grant of benefits sought. However, the Veteran maintains that his flat feet are more severe and worse than examiners have found and seeks higher ratings, in particular the initial 0 percent evaluation assigned for the period prior to August 6, 2020. Notably, the August 2020 VA examiner noted that the Veteran reported being seen by a civilian provider for his health care, A.R., D.O. in Okemos, MI. These private medical records have not been associated with the electronic claims file. On remand, pertinent records should be obtained. Furthermore, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's service-connected bilateral pes planus and plantar fasciitis is currently rated under Diagnostic Code 5276 which now provides a separate Diagnostic Code 5269 for plantar fasciitis. However, the implementation of the revised regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change, February 7, 2021. Here, because the Veteran is already in receipt of the maximum 50 percent disability rating under the old rating criteria from August 6, 2020, it is more favorable to the Veteran to consider the Veteran's claim under the older criteria prior to February 7, 2021. Additionally, the Board notes that the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) emphasized additional requirements that must be met for examinations to be adequate. The Court stated that examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a veteran, including during flare-ups. The examiner should estimate a veteran's functional loss due to flare-ups based on all the evidence of record, including the lay information, or sufficiently explain why the examiner cannot do so. The record shows the August 2020 examiner stated, "this examiner has no basis to offer measurements indicating additional losses of function or motion when it comes to repetitive use or during flare up." However, the examiner's response does not fully satisfy the requirements of Sharp. Accordingly, an addendum should be obtained which addresses matters in compliance with current case law. Specifically, if possible, a retrospective opinion for the period prior to August 6, 2020, regarding the Veteran's ranges of motion in active motion, passive motion, pain with weight-bearing and without weight bearing; severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups at each time the Veteran was examined during this appeal (2011 and 2020) with range of motion testing for rating purposes would be beneficial. 2. Entitlement to an initial rating in excess of 10 percent prior to August 6, 2020 and a rating in excess of 30 percent thereafter for GERD. 3. Entitlement to an initial rating in excess of 10 percent prior to August 6, 2020 and a rating in excess of 20 percent thereafter for lumbar spine disability. 4. Entitlement to an initial rating in excess of 10 percent prior to August 6, 2020 and a rating in excess of 20 percent thereafter for left shoulder disability. 5. Entitlement to an initial rating in excess of 10 percent for cervical spine disability. Similar to the above, in compliance with the Board's June 2020 remand, the Veteran was afforded a VA examination in August 2020 for his GERD, back, neck and shoulder disabilities. Based on such findings, in a September 2020 rating decision, the AOJ increased the evaluation for GERD to 30 percent effective August 6, 2020; increased the evaluation of lumbar spine to 20 percent effective August 6, 2020; increased the left shoulder to 20 percent effective August 6, 2020, and continued the 10 percent evaluation for cervical spine. However, the Veteran maintains that his claimed disabilities are more severe and worse than examiners have found and seeks higher ratings, in particular the initial period prior to the August 6, 2020 examination. The August 2020 VA examiner noted the Veteran's report that he is seen by civilian provider for his health care, Dr. A. Ronan. in Okemos, MI. These private medical records have not been associated with the electronic claims file. On remand, pertinent records should be obtained. The examiner also noted the Veteran's medical history of undergoing left shoulder surgery in January 2012 with Dr. P. Noud, which have been submitted by the Veteran with his claim. However, there are no other follow up treatment records for his shoulder from this private physician which is pertinent to the period prior to August 6, 2020. Thus, on remand efforts should be undertaken to obtain records from private treating physician which are not of record. Furthermore, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's left shoulder disability is currently rated under Diagnostic Code 5201 which now provides a range for limitation of motion. Lastly, the record shows the August 2020 examiner's comment that, "this examiner has no basis to offer measurements indicating additional losses of function or motion when it comes to repetitive use or during flare up." However, this does not fully satisfy the additional requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, an addendum should be obtained which addresses matters in compliance with current case law. Specifically, if possible, a retrospective opinion for the period prior to August 6, 2020, regarding the Veteran's ranges of motion in active motion, passive motion, pain with weight-bearing and without weight bearing; severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups at each time the Veteran was examined during this appeal (2011 and 2020) with range of motion testing for rating purposes would be beneficial. 6. Entitlement to an initial rating in excess of 10 percent for left wrist disability. 7. Entitlement to an initial compensable disability rating prior to August 6, 2020 and a rating in excess of 10 percent thereafter right wrist. 8. Entitlement to an initial compensable disability rating for right hand, arthritis of the index finger. 9. Entitlement to an initial compensable disability rating for right hand, arthritis of the long finger. 10. Entitlement to an initial compensable disability rating for right hand, arthritis of the ring finger. 11. Entitlement to an initial compensable disability rating for right hand, arthritis of the little finger. 12. Entitlement to an initial compensable disability rating for left hand, arthritis of the left thumb. 13. Entitlement to an initial compensable disability rating for left hand, arthritis of the ring finger. 14. Entitlement to an initial compensable disability rating for left hand, arthritis of the little finger. Likewise, in compliance with the Board's June 2020 remand, the Veteran was afforded a VA examination in August 2020 for his hand and finger disabilities. Based on such findings, in a September 2020 rating decision, the AOJ increased the evaluation for GERD to 30 percent effective August 6, 2020; increased the evaluation of lumbar spine to 20 percent effective August 6, 2020; increased the left shoulder to 20 percent effective August 6, 2020, and continued the 10 percent evaluation for cervical spine. However, the Veteran maintains that his claimed disabilities are more severe and worse than examiners have found and seeks higher ratings, in particular the initial period prior to the August 6, 2020 examination. The August 2020 VA examiner noted the Veteran's report that he is seen by civilian provider for his health care, Dr. A. Ronan. in Okemos, MI. These private medical records have not been associated with the electronic claims file. On remand, pertinent records should be obtained. The examiner also noted the Veteran's medical history of undergoing left shoulder surgery in January 2012 with Dr. P. Noud, which have been submitted by the Veteran with his claim. However, there are no other follow up treatment records for his shoulder from this private physician which is pertinent to the period prior to August 6, 2020. Thus, on remand efforts should be undertaken to obtain records from private treating physician which are not of record. Furthermore, while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the Diagnostic Codes for the pertaining to the wrist, hand and fingers have not changed. With that said, however, the record shows the August 2020 examiner's comment that, "this examiner has no basis to offer measurements indicating additional losses of function or motion when it comes to repetitive use or during flare up." However, this does not fully satisfy the additional requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, an addendum should be obtained which addresses matters in compliance with current case law. If possible, a retrospective opinion regarding the Veteran's ranges of motion in active motion, passive motion, pain with weight-bearing and without weight bearing; severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups at each time the Veteran was examined during this appeal (2011 and 2020) with range of motion testing for rating purposes would be beneficial. 15. Entitlement to TDIU on a schedular basis. As the development ordered above for the Veteran's increased rating claims could result in information relevant to the issue of entitlement to a TDIU, the Board finds the issues are inextricably intertwined and therefore the issue of entitlement to TDIU must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Update VA treatment records from the last date available in the electronic record to the present, and associate with the claims file. Contact the Veteran regarding any additional private treatment records and if necessary, obtain authorization to obtain additional evidence pertinent to the claims on appeal that is not currently of record, in particular, private treatment records from Dr. A. Ronan in Okemos, MI, his civilian provider for health care, and additional treatment records from Dr. P. Noud, if any, since his surgery in January 2012. 2. Bilateral Pes Planus Obtain an addendum opinion from a qualified medical professional to determine the severity of the Veteran's claimed bilateral pes planus and plantar fasciitis. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The examiner should consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). The examiner should provide a retrospective opinion addressing the above (ranges of motion in active motion, passive motion, pain with weight-bearing and without weight-bearing; severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups) at the time the disability was previously examined during this appeal with range of motion testing for rating purposes. See VA examination of August 2020. For the period prior to August 6, 2020, the examiner should determine whether the Veteran experiences flare-ups and to the extent possible estimate any additional functional loss caused by the flare-ups. If the examiner is unable to do so then before concluding that such an estimate cannot be made without resorting to mere speculation, the examiner should ascertain by alternative means, including the Veteran's testimony, the following information regarding his flare-ups: frequency, duration, characteristics, severity, or functional loss. Afterwards the examiner should explain why such an estimate cannot be made. 3. Back, Shoulder, Neck Obtain an addendum opinion from a qualified medical professional to determine the severity of the Veteran's claimed lumbar spine, left shoulder, and cervical spine disabilities. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The examiner should consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). The examiner should provide a retrospective opinion addressing the above (ranges of motion in active motion, passive motion, pain with weight-bearing and without weight-bearing; severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups) at the time the disability was previously examined during this appeal with range of motion testing for rating purposes. See VA examination of August 2020. For the period prior to August 6, 2020, the examiner should determine whether the Veteran experiences flare-ups and to the extent possible estimate any additional functional loss caused by the flare-ups. If the examiner is unable to do so then before concluding that such an estimate cannot be made without resorting to mere speculation, the examiner should ascertain by alternative means, including the Veteran's testimony, the following information regarding his flare-ups: frequency, duration, characteristics, severity, or functional loss. Afterwards the examiner should explain why such an estimate cannot be made. 4. Wrist, Hand, and Fingers Obtain an addendum opinion from a qualified medical professional to determine the severity of the Veteran's claimed wrist, hand, and fingers. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The examiner should consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). The examiner should provide a retrospective opinion addressing the above (ranges of motion in active motion, passive motion, pain with weight-bearing and without weight-bearing; severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups) at the time the disability was previously examined during this appeal with range of motion testing for rating purposes. See VA examination of August 2020. For the period prior to August 6, 2020, the examiner should determine whether the Veteran experiences flare-ups and to the extent possible estimate any additional functional loss caused by the flare-ups. If the examiner is unable to do so then before concluding that such an estimate cannot be made without resorting to mere speculation, the examiner should ascertain by alternative means, including the Veteran's testimony, the following information regarding his flare-ups: frequency, duration, characteristics, severity, or functional loss. Afterwards the examiner should explain why such an estimate cannot be made. 5. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. An, 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.