Citation Nr: 21031567 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-29 073 DATE: May 24, 2021 REMANDED Entitlement to service connection for a speech disability, to include as secondary to a stroke and/or the service-connected cervical strain, is remanded. Entitlement to an initial rating in excess of 20 percent for left shoulder internal derangement and rotator cuff tear status post repair ("left shoulder disability") is remanded. Entitlement to an initial rating in excess of 20 percent for right shoulder strain is remanded. Entitlement to an initial rating in excess of 20 percent for left upper extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for right upper extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for cervical spine strain is remanded. Entitlement to an initial rating in excess of 10 percent for thoracic spine strain is remanded. Entitlement to an initial compensable rating for post-incisional abdominal hernia and repair is remanded. Entitlement to an initial compensable rating for tension headaches is remanded. Entitlement to an initial compensable rating for left shoulder scars status post rotator cuff tear repair surgery is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the Air Force Reserve and Army National Guard for approximately 32 years, from March 1977 to March 2009, including a verified period of active duty for training (ACDUTRA) from July 1977 to December 1977. In February 2021, the Veteran testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. 1. Entitlement to service connection for a speech condition is remanded. The Veteran testified in the February 2021 Board hearing that her claimed speech disability is a residual of a stroke, which was seated in a vertebral artery tortuosity of her neck, and her service-connected cervical strain. The Veteran had a relevant VA examination in August 2013. It is unclear whether she was diagnosed with a speech condition, and the examiner opined that the claimed speech condition was less likely as not proximately due to or the result of the cervical (and thoracic) spine condition. The Board notes, however, that the Veteran filed a Supplemental Claim in April 2021 for service connection for residuals of a stroke, which has not yet been adjudicated. The Board finds that the claim for service connection for a speech condition is inextricably intertwined with the claim for residuals of a stroke that has not yet been adjudicated. As such, consideration of entitlement to service connection for a speech condition must be deferred until the intertwined service connection for residuals of a stroke issue is resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 2. Entitlement to an increased rating for left shoulder disability is remanded. 3. Entitlement to an increased rating for right shoulder strain is remanded. 4. Entitlement to an increased rating for left upper extremity radiculopathy is remanded. 5. Entitlement to an increased rating for right upper extremity radiculopathy is remanded. 6. Entitlement to an increased rating for cervical spine strain is remanded. 7. Entitlement to an increased rating for thoracic spine strain is remanded. 8. Entitlement to an increased rating for left shoulder scars status post rotator cuff tear repair surgery is remanded. The Veteran was most recently examined for these disabilities in August 2013. In a shoulders examination, she was noted to have bilateral decreased ranges of motion, pain on movement, and pain on palpation. In a peripheral nerves examination, she reported having constant numbness and tingling of the bilateral upper extremities and was found to have mild incomplete paralysis of the bilateral upper radicular group, middle radicular group, and lower radicular group. In neck and back examinations, the Veteran had reduced ranges of motion, pain on movement, pain to palpation, and interference with sitting, standing, and/or weight-bearing. In the February 2021 Board hearing, the Veteran testified that her symptoms in the shoulders, upper extremities, neck, and back had worsened. She stated that her shoulders and upper extremities were negatively impacting her sleep and when she woke up, her hands and face were numb. She also got "red streaks" down her arm, her hands were sometimes cold and/or numb, and she had increased discomfort. Her neck caused constant discomfort with pain and numbness, which was increased by lifting and sleeping. Her thoracic spine pain had "greatly gone up," and she may need a surgery for a hemangioma on the thoracic spine, which she was putting off due to COVID. Thus, due to evidence of potentially worsening symptomatology, the Board finds that new VA examinations are necessary. Remand is also necessary to afford the Veteran VA examinations that are compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. That final sentence of 38 C.F.R. § 4.59 directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Here, the Veteran had VA shoulders, neck, and back examinations in August 2013, which were conducted prior to Correia, and thus did not include necessary findings. As such, remand is necessary to afford the Veteran VA examinations that comply with the Correia requirements. The examiner should also determine whether it is possible to provide retrospective medical opinions. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). 9. Entitlement to an increased rating for post-incisional abdominal hernia and repair is remanded. The Veteran testified in the February 2021 Board hearing that she was diagnosed with cervical cancer and/or a uterine tumor, which required a radical hysterectomy in service. Within a week of the hysterectomy, she developed an abdominal incisional hernia, for which she is service-connected. Two years ago, the Veteran had a series of four surgeries to correct problems from the hysterectomy. The recent surgeries resulted in 800 stitches, a scar that goes from below her belly button down to her pubic symphysis, and another scar that goes from one hip to the other and rides on her femoral arteries. The Veteran stated that she was still recovering from the four surgeries, including having anchors in her abdomen that had not healed, and her abdomen was still numb. The Veteran's private physician, Dr. C.B., completed a VA gynecological conditions Disability benefits Questionnaire (DBQ) and a VA scars DBQ in September 2018. However, in light of the Veteran's assertions in the Board hearing, the Board finds that remand is necessary to afford the Veteran a VA examination to determine the current nature and severity of her service-connected disability. 10. Entitlement to an increased rating for tension headaches is remanded. The Veteran testified in the February 2021 Board hearing that she had a vertebral artery and/or frontal lobe stroke, and that when you have a frontal lobe headache, it is like you "put a belt around your head and squeeze it tight." She woke up every day with "almost like a TIA," in which her face and frontal lobe area were numb. Every day she had a headache, which were worse due to weather, stress, lights on her computer, or not moving around enough. The Veteran stated that the headaches secondary to her stroke affected her ability to work as a critical care nurse. It is unclear to the Board what headache symptoms are due to the stroke and what symptoms are due to the service-connected headaches, and/or whether the tension headache disability has increased in severity. As such, remand for a VA examination and medical opinion is necessary. 11. Entitlement to a TDIU is remanded. The Veteran asserted in the February 2021 Board hearing that she is a critical care nurse, and although she still worked, it was only for a "couple days a week" doing mostly computer work. She also stated that she has to take as much as five days off in a row to do her therapies. Entitlement to total disability evaluation based on individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). "Marginal employment," for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). Here, it is unclear to the Board based on the above whether the Veteran is currently employed beyond "marginal employment." As such, in light of the holding in Rice, and affording the Veteran the benefit of the doubt, the Board has amended the issues on appeal to include entitlement to a TDIU as reflected above. The AOJ has not developed or adjudicated the matter. As such, the Board must remand for such action. 38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 447 (2009). The severity of the Veteran's service-connected disabilities, employment history, education and training, and all other factors having a bearing on the matter must be developed and considered. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations to ascertain the severity and manifestations of her service-connected bilateral shoulders, cervical spine, and thoracic spine disabilities. The examiner is asked to review all relevant records and conduct a clinical evaluation. All indicated studies, tests, and evaluations deemed necessary should be performed. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran's bilateral shoulder, cervical spine, and thoracic spine disabilities. Ranges of motion (ROM) should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also comment on whether ROM measurements for active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated for the period prior to the examination. If the examiner is unable to provide a retrospective opinion as to these specific ROM findings, he or she should clearly explain so in the report. 2. Schedule the Veteran for VA examinations to ascertain the severity and manifestations of her service-connected bilateral upper extremity radiculopathy, post-incisional abdominal hernia and repair, and tension headaches. The examiner(s) should review all relevant records and conduct a clinical evaluation. All indicated studies, tests, and evaluations deemed necessary should be performed. Based on this review, the examiner(s) should provide an assessment of the current nature of the Veteran's bilateral upper extremity radiculopathy, post-incisional abdominal hernia and repair, and tension headaches. In addition, with regard to the tension headache disability, the examiner should specify what symptoms are attributable to the tension headaches and what symptoms are attributable to residuals of the Veteran's stroke. If the various manifestations and degree of disability attributable to the tension headaches cannot be distinguished from the other disabilities, the examiner should so indicate and explain the reasons for that conclusion. 3. Send the Veteran a VCAA notice for entitlement to a TDIU and any related development (such as a VA Form 21-8940). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Nelson 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.