Citation Nr: 21031976 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-56 549 DATE: May 25, 2021 REMANDED Entitlement to service connection for a right ankle disorder is remanded. Entitlement to an initial rating in excess of 10 percent prior to January 19, 2016, and in excess of 20 percent thereafter for cervical spine degenerative disc disease with degenerative arthritis (hereinafter, neck disorder) is remanded. Entitlement to an initial rating in excess of 10 percent prior to January 19, 2016, and in excess of 20 percent thereafter for thoracolumbar spine degenerative disc disease with arthritis (hereinafter, back disorder) is remanded. Entitlement to an initial rating in excess of 20 percent prior to January 19, 2016, and in excess of 30 percent thereafter for right shoulder slap tear status post arthroscopy (hereinafter, right shoulder disorder) is remanded. Entitlement to an initial rating in excess of 20 percent for left shoulder rotator cuff tear status post arthroscopy and bicep tenodesis (hereinafter, left shoulder disorder) is remanded. Entitlement to an initial rating in excess of 10 percent for right knee degenerative arthritis and joint disease status post arthroscopic surgery (hereinafter, right knee disorder) is remanded. Entitlement to an initial rating in excess of 10 percent for left knee degenerative arthritis (hereinafter, left knee disorder) is remanded. Entitlement to an initial rating in excess of 30 percent for bilateral plantar fasciitis with pes planus status post surgical fasciotomies (hereinafter, bilateral foot disorder) is remanded. Propriety of the assignment of a separate rating for radiculopathy of the right upper extremity, evaluated as 20 percent disabling as of July 1, 2014, is remanded. Propriety of the assignment of a separate rating for radiculopathy of the left upper extremity, evaluated as 20 percent disabling as of July 1, 2014, is remanded. Propriety of the assignment of a separate rating for radiculopathy of the right lower extremity, evaluated as 10 percent disabling as of January 19, 2016, is remanded. Propriety of the assignment of a separate rating for radiculopathy of the left lower extremity, evaluated as 10 percent disabling as of January 19, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1992 to January 1996 and from June 2001 to June 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In April 2019, the Board remanded the Veteran's claims for service connection for left and right ankle disorders and initial compensable ratings for his neck, back, right shoulder, left shoulder, right knee, left knee, and bilateral foot disorders for additional development. While on remand, in an April 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for chronic left ankle sprain. As such is a full grant of the benefits sought on appeal with respect to this issue, such matter is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The remaining issues now return for further appellate review. In this regard, in the April 2020 rating decision, the AOJ increased the rating of the Veteran's: (1) neck disorder to 10 percent, effective July 1, 2014; and 20 percent, effective January 19, 2016; (2) back disorder to 10 percent, effective July 1, 2014; and 20 percent, effective January 19, 2016; (3) right shoulder to 20 percent, effective July 1, 2014; and 30 percent, effective January 19, 2016; (4) left shoulder to 20 percent, effective July 1, 2014; (5) right knee to 10 percent, effective July 1, 2014; (6) left knee to 10 percent, effective July 1, 2014; and (7) bilateral foot disorder to 30 percent, effective July 1, 2014. As the Veteran is presumed to be seeking the maximum benefit for a disability, such claims for higher ratings remain in appellate status. A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Furthermore, the Veteran's claims for higher initial ratings for his neck, back, and right shoulder have been characterized to reflect that staged ratings are in effect. Fenderson v. West, 23 Vet. App. 119 (1999). Moreover, in the April 2020 rating decision, the AOJ awarded separate ratings for radiculopathy of the bilateral upper extremities (evaluated as 20 percent disabling as of July 1, 2014) and lower extremities (evaluated as 10 percent disabling as of January 19, 2016). While the Veteran did not enter a notice of disagreement with regard to the proprieties of the assigned effective dates or ratings for such awards, the Board notes that such issues are part and parcel of his claims for entitlement to increased ratings for his neck and back disorders, respectively. Thus, the Board has assumed jurisdiction over such matters. 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to an initial rating in excess of 10 percent prior to January 19, 2016, and in excess of 20 percent thereafter for a neck disorder. 3. Entitlement to an initial rating in excess of 10 percent prior to January 19, 2016, and in excess of 20 percent thereafter for a back disorder. 4. Entitlement to an initial rating in excess of 20 percent prior to January 19, 2016, and in excess of 30 percent thereafter for a right shoulder disorder. 5. Entitlement to an initial rating in excess of 20 percent for a left shoulder disorder. 6. Entitlement to an initial rating in excess of 10 percent for a right knee disorder. 7. Entitlement to an initial rating in excess of 10 percent for a left knee disorder. 8. Entitlement to an initial rating in excess of 30 percent for a bilateral foot disorder. 9. Propriety of the assignment of a separate rating for radiculopathy of the right upper extremity, evaluated as 20 percent disabling as of July 1, 2014. 10. Propriety of the assignment of a separate rating for radiculopathy of the left upper extremity, evaluated as 20 percent disabling as of July 1, 2014. 11. Propriety of the assignment of a separate rating for radiculopathy of the right lower extremity, evaluated as 10 percent disabling as of January 19, 2016. 12. Propriety of the assignment of a separate rating for radiculopathy of the left lower extremity, evaluated as 10 percent disabling as of January 19, 2016. As relevant, the Board remanded the claims in April 2019 in order to obtain the Veteran's VA vocational rehabilitation records. Specifically, the Board noted that the record indicated the Veteran applied for vocational rehabilitation in May 2018. Consequently, the Board directed that the AOJ obtain the Veteran's complete vocational rehabilitation counseling folder, to include all evaluation and narrative reports. The AOJ was further advised that if such records were not available, the claims file should be annotated to reflect such, and the Veteran notified. However, it does not appear that the AOJ attempted to obtain the Veteran's complete VA vocational rehabilitation records. Further, there is no finding in the record detailing the unavailability of such records. Consequently, another remand is necessary in order to ensure compliance with the Board's prior remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, upon a review of the record, it appears that there are outstanding treatment records. In this regard, in a May 2019 written correspondence, the Veteran's representative reported that the Veteran received treatment at the Camp Lejeune Naval Hospital since his discharge from military service to the present time. However, the only treatment records from such facility on file are dated from October 2016 to December 2016. Thus, a remand is necessary in order to obtain such outstanding treatment records. Additionally, the Veteran underwent VA examination in January 2020 in connection with his increased rating claims for bilateral shoulder disabilities and bilateral knee disabilities. The associated reports reflect findings of objective evidence of pain on passive range of motion testing and in non-weight bearing for both shoulders and knees. However, the VA examiners did not provide the ranges of motion, in degrees, where pain commenced. Thus, the Board finds a remand is warranted to obtain addendum opinions addressing such matters. The matters are REMANDED for the following actions: 1. Obtain the Veteran's complete VA vocational rehabilitation folder and associate it with the record on appeal. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain all outstanding treatment records from the Camp Lejeune Naval Hospital dated from 2014 onward. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). (Continued on the next page) 3. Forward the record, to include a copy of this Remand, to the January 2020 VA examiner, or an appropriate clinician if unavailable, to offer an addendum opinion regarding the severity of the Veteran's bilateral shoulder disabilities. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner is requested to review the January 2020 VA examination report and offer an opinion as to the range of motion findings, expressed in degrees, for pain on passive motion and non-weight bearing for both shoulders. 4. Forward the record, to include a copy of this Remand, to the January 2020 VA examiner, or an appropriate clinician if unavailable, to offer an addendum opinion regarding the severity of the Veteran's bilateral knee disabilities. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner is requested to review the January 2020 VA examination report and offer an opinion as to the range of motion findings, expressed in degrees, for pain on passive motion and non-weight bearing for both knees. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.