Citation Nr: 21028273 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-37 201 DATE: May 10, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to May 22, 2017; in excess of 20 percent from May 22, 2017, to March 27, 2019; and in excess of 40 percent as of March 28, 2019, for a lumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent prior to March 28, 2019, and in excess of 30 percent on and after March 28, 2019, for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent prior to May 23, 2016, and in excess of 20 percent as of May 23, 2016, for left (minor) shoulder disability, to include entitlement to separate compensable ratings, is remanded. Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 1987 to November 1987; from October 1991 to April 1998; and from April 2005 to July 2006. The Veteran appeared at a January 2021 virtual hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. At the January 2021 Board of Veterans' Appeals (Board) hearing, the Veteran raised the issue of entitlement to TDIU. When entitlement to TDIU is raised during the adjudicatory process of evaluating the underlying disability or disabilities, it is part of the claim for benefits for the underlying disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue of entitlement to TDIU is on appeal and will be addressed below. In May 2018, the Board denied increased ratings for left clavicular fracture residuals with shoulder deformity and right ankle sprain residuals. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In September 2020, the United States Court of Appeals for Veterans Claims granted the Parties' Joint Motion for Partial Remand; vacated those portions of the May 2018 Board decision which denied increased ratings for left clavicular fracture residuals and right ankle sprain residuals; and remanded the claims to the Board for additional action consistent with the Joint Motion for Partial Remand. 1. Entitlement to increased ratings for a left (minor) shoulder disability and a right ankle disability is remanded. The Parties' Joint Motion for Partial Remand directs that the Board erred in failing to address all disability associated with the service-connected left clavicular fracture residuals and right ankle sprain residuals including functional loss due to pain; impairment of the left clavicle including malunion; and right ankle instability. At the January 2021 Board hearing, the Veteran testified that the left clavicular fracture residuals and right ankle disability had increased in severity and the right ankle now requires surgery. The Department of Veterans Affairs (VA) has recently amended that portion of 38 C.F.R. Part 4 which pertain to musculoskeletal disabilities. On February 7, 2021, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5003 degenerative arthritis, Diagnostic Code 5201 limitation of motion of the shoulder, and Diagnostic Code 5271 limitation of motion of the ankle were amended. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5201, 5271). VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board has no discretion and must remand the appeal for compliance with the United States Court of Appeals for Veterans Claims' September 2020 Order granting the Joint Motion for Partial Remand. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006) (duty to ensure compliance with United States Court of Appeals for Veterans Claims order extends to the terms of agreement struck by Parties that forms basis of Joint Motion for Remand). That compliance includes further VA evaluation. 2. Entitlement to increased ratings for a lumbar spine disability is remanded. At the January 2021 Board hearing, the Veteran testified that the service-connected lumbar spine disability had increased in severity and required further surgery. Clinical documentation of the cited lumbar spine surgery, if conducted, is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has recently amended that portion of 38 C.F.R. Part 4 which pertain to musculoskeletal disabilities. On February 7, 2021, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5242 degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome and Diagnostic Code 5243 intervertebral disc syndrome were amended. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243). The Veteran was last provided a VA spine examination in March 2019. Because of the Veteran's testimony as to the increase in severity of the service-connected lumbar spine disability and the amended diagnostic criteria, the Board finds that further VA spine evaluation is needed. 3. Entitlement to increased ratings for a right knee disability is remanded. At the January 2021 Board hearing, the Veteran testified that he underwent an October 2020 right knee replacement. VA has recently amended that portion of 38 C.F.R. Part 4 which pertain to musculoskeletal disabilities. On February 7, 2021, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5055 knee, resurfacing or replacement (prosthesis) were amended. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5055). The Veteran was last provided a VA knee examination in September 2020. Because of the Veteran's testimony as to the recent right knee replacement and the amended diagnostic criteria, the Board finds that further VA knee evaluation is needed. 4. Entitlement to TDIU is remanded. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. As the claim for TDIU is inextricably intertwined with other claims being remanded, the issue of entitlement to a TDIU must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for the service-connected left shoulder or clavicle, right ankle, lumbar spine, and right knee disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA clinical documentation not already of record. 3. Schedule the Veteran for a VA shoulder examination conducted by a medical doctor to assist in determining the current nature and severity of service-connected left clavicular fracture residuals. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion, and for weight-bearing and nonweight-bearing, of both shoulders. The degree at which pain is elicited should be specifically noted. (b) State whether there is any additional loss of function of left shoulder function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (c) Specifically identify any left clavicular impairment, including malunion, found. (d) Provide an opinion as to the impact of the left shoulder disability on the Veteran's vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the effects of the left shoulder disability and the other service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. 4. Schedule the Veteran for a VA examination conducted by a medical doctor to assist in determining the nature and severity of service-connected right knee and right ankle disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of the both knees and both ankles. The examiner should indicate the degree at which any pain is noted. (b) State whether there is any additional loss of function of the right knee and right ankle due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. The examiner should specifically opine as to any additional loss of function due to flare up. (c) State whether there is any recurrent subluxation or lateral instability of the right knee, and if so, opine as to the severity. (d) Provide an opinion as to the impact of the right knee and right ankle disabilities on the Veteran's vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the effects of the right knee and right ankle disabilities and the other service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. 5. Schedule the Veteran for a VA examination conducted by a medical doctor to assist in determining the current nature and severity of the service-connected lumbar spine disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of the lumbar spine and weight-bearing and nonweight-bearing. The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (b) Indicate whether, and to what extent, the Veteran experiences functional loss of the lumbar spine due to pain or any other symptoms during flare ups or with repeated use. (c) Note any incapacitating episodes associated with the lumbar spine disability, and the duration and frequency. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (d) State whether or not there is any ankylosis of the spine or any segment of the spine. (e) Provide an opinion as to the impact of the lumbar spine on the Veteran's vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the effects of the lumbar spine and the other service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Hutcheson, 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.