Citation Nr: 21031794 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-09 357 DATE: May 24, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to an initial rating in excess of 40 percent for degenerative disc disease (DDD) of the thoracolumbar spine with lumbar spondylosis, exclusive of temporary total rating periods, to include on an extraschedular basis, is remanded. Entitlement to an initial rating in excess of 30 percent for DDD of the cervical spine on an extraschedular basis, exclusive of temporary total rating periods, is remanded. Entitlement to an initial 40 percent rating for right upper extremity radiculopathy, to include whether separate rating is warranted for upper radicular group nerves and middle radicular group nerves, is remanded. Entitlement to an initial rating in excess of 30 percent for left upper extremity radiculopathy, to include whether separate rating is warranted for upper radicular group nerves and middle radicular group nerves, is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy (femoral nerve) is remanded. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy (femoral nerve) is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy (sciatic nerve) is remanded. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy (sciatic nerve) is remanded. Entitlement to special monthly compensation (SMC) based on statutory housebound status under 38 U.S.C. § 1114(s) for the period prior to March 26, 2014, exclusive of the period from June 1, 2009 to August 1, 2009, is remanded. REASONS FOR REMAND The Veteran had active military service from March 1981 to July 1987. The issue of entitlement to service connection for hypertension is before the Board of Veterans' Appeals (Board) following a Board Remand in January 2020. The remaining issues on appeal are back before the Board on Remand from the United States Court of Appeals for Veterans Claims regarding decisions rendered in the January 2020 Board decision. Specifically, the January 2020 Board decision denied a rating in excess of 40 percent for the Veteran's thoracolumbar disability, determined that referral was not warranted for the Veteran's thoracolumbar and cervical spine disabilities, denied separate ratings for the Veteran's upper extremity radiculopathy under Diagnostic Codes 8510 (for paralysis of the upper radicular group nerves) and 8511(for paralysis of the middle radicular group nerves), and which denied ratings in excess of 20 percent for the Veteran's lower extremity radiculopathy (paralysis of the femoral and sciatic nerves), and granted SMC based on statutory housebound status under 38 U.S.C. § 1114(s) for the period from June 1, 2009 to August 1, 2009 and SMC based on the need for A&A from March 26, 2014. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a Joint Motion for Partial Remand and remanded the matter for development consistent with such Joint Motion. The Board notes that the Veteran's attorney requested a copy of the January 2020 VA examination report. In April 2021, the Agency of Original Jurisdiction provided the Veteran's attorney with a compact disc (CD) which was noted to contain the VA examination report. On May 6, 2021, the Veteran's attorney reported that the CD was blank and requested a readable CD containing a copy of the records originally requested. On May 10, 2021, the Veteran was informed that the Privacy Act request was received, and a case number has been assigned. Although the Veteran's attorney may be sent another CD, on May 10, 2021, the Board requested that a paper copy be mailed. Thus, the Board wishes to assure the Veteran and his attorney that the documents requested are forthcoming. 1. Entitlement to service connection for hypertension In January 2020, the Board remanded the issue for additional development, specifically, the Board noted that the Veteran had a diagnosis of hypertension and directed that he be afforded a VA examination to address the nature of etiology of his hypertension. The Veteran underwent VA examination in January 2020 at which time the examiner noted that the Veteran did not have a diagnosis of hypertension. Specifically, the examiner noted that the serial blood pressure reading did not establish a diagnosis for isolated systolic blood pressure and not for essential or systemic hypertension. The examiner noted that serial blood pressure reading was not provided until January 2002. The Board notes that the record is replete with elevated blood pressure readings. In February 2017, the Veteran's VA primary care physician noted that he was being evaluated for resistant or secondary causes for hypertension, that his blood pressure was usually adequately controlled, and that no medication changes were indicated at that time. The Board advises that the 'current disability' requirement is satisfied when a claimant has a disability at the time of filing the claim or at any point during the pendency of the claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007); see Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding "that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability exist[s]"). As such, the Board finds the examination is inadequate; thus, remand is required to provide the Veteran with an opportunity to report for an additional examination. 2. Entitlement to an initial rating in excess of 40 percent for degenerative disc disease (DDD) of the thoracolumbar spine with lumbar spondylosis, to include on an extraschedular basis 3. Entitlement to an initial rating in excess of 30 percent for DDD of the cervical spine on an extraschedular basis In January 2021, the Board denied the Veteran's claim for rating in excess of 40 percent for the Veteran's thoracolumbar spine disability and in excess of 30 percent for the Veteran's cervical spine disability. The thoracolumbar spine issue was remanded by the Court because the parties agreed that the December 2018 VA examination upon which the decision to deny a 50 percent rating was based, was inadequate. Specifically, it was noted that the December 2018 VA examiner checked a box indicating that the Veteran did not have ankylosis of the spine but did not reconcile this finding with a notation earlier in the examination report indicating that, at times, the Veteran could not move his spine at all due to pain. Thus, the parties agreed that the Veteran should be afforded a new VA examination that addresses whether he has unfavorable ankylosis of the spine. The parties also agreed that the Board did not adequately support its determination that referral of the Veteran's claims for increased initial rating for the thoracolumbar and cervical spine disabilities for extraschedular consideration was not warranted. Specifically, the Veteran asserted that referral for extraschedular consideration of his spine disabilities was warranted due to significant effects of pain medication (Opana) prescribed to treat his spinal disabilities. The Veteran asserted that taking Opana caused symptoms not contemplated by the rating schedule, to include weight loss, cognitive dysfunction, hand tremors, constipation, diarrhea, and decreased appetite. The parties agreed that the Board erred by limiting its consideration to whether the Veteran's use of the medication Opana caused him to have marked interference with employment or frequent periods of hospitalization and did not consider whether the Veteran's spinal condition exhibited other related factors such as those provided by the regulation as "governing norms," such as marked interference with employability or frequent hospitalizations. Extraschedular consideration is provided for under 38 C.F.R. § 3.321 (b)(1) when the record presents such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." In this case, the record indicates that the Veteran was prescribed Opana. In July 2012, the Veteran reported having side effects such as losing weight, having no libido, having a lot of tremors in his hands, and cognitive dysfunction. At the end of July 2012, the Veteran reported that he had to stop taking the Opana due to constipation, weight loss, tremors, and change in sleep. In August 2012, the Veteran reported no side effects from Opana but reported not sleeping well and having loss of appetite. On the Notice of Disagreement received in November 2013, it was noted that the Veteran was taking Opana at that time and was experiencing side effects such as decreased appetite, constipation, diarrhea, weight loss, and tremors. It was noted that the Veteran had a weight loss of 30 pounds that year. At the December 2014 VA examinations, the Veteran reported taking multiple pain medication which caused digestive issues; he also noted that his Topamax that he was taking for his headaches caused cognitive issues and tremors. In August 2015, the Veteran noted that he stopped taking Opana because of gastrointestinal issues. Information received from the Veteran indicate that during clinical trials, patients who were treated with Opana reported nausea, pyrosis, somnolence, vomiting, pruritis, headache, dizziness, constipation, and confusion with additional adverse effects apparently not experienced by the Veteran. It is not entirely clear to the Board whether the Veteran's reported side effects are entirely from the medication he was taking to treat his spinal pain. As such, the Board finds that an opinion should be obtained which considers the impact or side effects of medications taken specifically for the Veteran's thoracolumbar and cervical spine disabilities. 4. Entitlement to an initial 40 percent rating for right upper extremity radiculopathy, to include whether separate rating is warranted for upper radicular group nerves and middle radicular group nerves 5. Entitlement to an initial rating in excess of 30 percent for left upper extremity radiculopathy, to include whether separate rating is warranted for upper radicular group nerves and middle radicular group nerves In the January 2021 decision, the Board also denied the Veteran's claim for rating in excess of 40 percent for the Veteran's right upper extremity radiculopathy and in excess of 30 percent for the Veteran's left upper extremity radiculopathy. These issues were remanded by the Court because the parties agreed that the Board erred in finding that separate ratings could not be assigned under 38 C.F.R. § 4.124A, Diagnostic Code 8510 (paralysis of the upper radicular nerve group associated with raising, lowering, and rotating the arm) and Diagnostic Code 8511 (paralysis of the middle radicular nerve group associated with bending at the elbow and wrist and lifting the hand). The Veteran last underwent VA Peripheral Nerves examination in November 2018. As such, the Board finds that the Veteran should be provided an examination to determine the current severity of his disability. 6. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy (femoral nerve) 7. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy (femoral nerve) 8. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy (sciatic nerve) 9. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy (sciatic nerve) In the January 2021 decision, the Board also denied the Veteran's claim for ratings in excess of 20 percent for the Veteran's lower extremity radiculopathy. These issues were remanded by the Court because the parties agreed that the Board erred by not adequately addressing whether the evidence showed that the Veteran's lower extremity radiculopathy more nearly approximated "moderately severe" incomplete paralysis of the sciatic nerve, which would have resulted in increased ratings under Diagnostic Code 8520, or "severe" incomplete paralysis of the femoral nerve, which would have resulted in increased ratings under Diagnostic Code 8526. As noted above, the Veteran last underwent VA Peripheral Nerves examination in November 2018. As such, the Board finds that the Veteran should be provided an examination to determine the current severity of his disability. 10. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance (A&A) The parties agreed that remand of the issue of entitlement to SMC prior to March 26, 2014, excluding the period from June 1, 2009 to August 1, 2009, was required because the issues were inextricably intertwined with the initial increased ratings claims being remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any outstanding treatment records relevant to his remanded claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Schedule the Veteran for an examination by an appropriate clinician to address whether Veteran's hypertension is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by service-connected disabilities, including major depressive disorder and the pain associated with his various musculoskeletal disabilities. In doing so, if the clinician does not find that the Veteran has a current hypertension diagnosis, he or she should address whether the earlier diagnosis was inaccurate, or the previously diagnosed condition resolved. In addition, the clinician is asked to address the following medical articles submitted by the Veteran: "Depression increases the risk of hypertension incidence: a meta-analysis of prospective cohort studies;" and "Prevalence of clinical hypertension in patients with chronic pain compared to non-pain general medical patients." 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected thoracolumbar disability. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. In so doing, the clinician must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training. The clinician must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Specifically, the clinician should provide an opinion as to whether during flare-up the Veteran's thoracolumbar spine disability, any additional loss is consistent with unfavorable ankylosis of the entire thoracolumbar spine. The clinician is advised that at the December 2018 VA examination, the Veteran reported that at times he could not move his spine at all due to pain. If it is not possible to provide a specific measurement 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. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Finally, the examiner is asked to address the reported side effects from the Veteran's medication prescribed for his cervical and thoracolumbar spine disabilities. Specifically, the clinician is asked to note for which disability the Veteran took each medication and clarify the time period and symptoms involved. 4. After the above development has been accomplished, refer the cervical and thoracolumbar spine claims to the Director of Compensation Service for extraschedular consideration to specifically address the symptoms noted in the January 2020 joint motion for partial remand weight loss, cognitive dysfunction, hand tremors, constipation, diarrhea, and decreased appetite. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected upper and lower extremity radiculopathy. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The clinician is asked to determine if there are different manifestations and/or functional effects attributable to the upper radicular group than are attributable the middle radicular group. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to SMC prior to March 25, 2014, excluding the period from June 1, 2009 to August 1, 2009. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia 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.