Citation Nr: 21032252 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 19-04 246 DATE: May 26, 2021 REMANDED Entitlement to a rating in excess of 20 percent for L4-L5 space narrowing degenerative arthritis is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a rating in excess of 20 percent for traumatic arthritis of the right shoulder based on limited range of motion is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability based on limitation of motion is remanded. Entitlement to a rating in excess of 20 percent or a separate rating for a right ankle disability is remanded. Entitlement to a rating in excess of 20 percent or a separate rating for a left ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active service from August 1978 to August 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2020 decision, the Board, in pertinent part, denied the Veteran's claims for entitlement to higher evaluations for his low back disability, right shoulder based on limited range of motion, radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, a left knee disability based on limitation of motion, a right ankle disability, and a left ankle disability. The Veteran appealed the portion of the February 2020 decision enumerated above. In November 2020, the United States Court of Appeals for Veterans Claims (the Court) vacated the Board's decision as to these issues and granted the parties' October 2020 Joint Motion for Partial Remand (JMPR) for action consistent with the JMPR. The Board also remanded the claim for service connection for a psychiatric disability in February 2020. As the Agency of Original Jurisdiction (AOJ) is still undertaking development on that claim, the appeal as to that issue is not before the Board at this time. 1. Entitlement to a rating in excess of 20 percent for L4-L5 space narrowing degenerative arthritis is remanded. 2. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. 3. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. 4. Entitlement to a rating in excess of 20 percent for traumatic arthritis of the right shoulder based on limited range of motion is remanded. 5. Entitlement to a rating in excess of 10 percent for a left knee disability based on limitation of motion is remanded. A remand is necessary for action consistent with the October 2020 JMPR. Specifically, the October 2020 JMPR indicated that contemporaneous VA examinations are necessary for these disabilities as there is evidence that those disabilities have worsened since the Veteran was last examined by VA. Moreover, the October 2020 JMPR noted that the February and September 2016 VA examinations as to back, knee, and shoulder conditions were inadequate pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, new VA examinations as to the Veteran's low back, knee, right lower extremity radiculopathy, and shoulder are necessary. As the Veteran's right lower extremity radiculopathy is being remanded for an examination which will yield relevant information, the Board will defer adjudication of the claim as to the left lower extremity radiculopathy. 6. Entitlement to a rating in excess of 20 percent or a separate rating for a right ankle disability is remanded. 7. Entitlement to a rating in excess of 20 percent or a separate rating for a left ankle disability is remanded. Pursuant to the parties' October 2020 JMPR, the Court vacated the February 2020 Board Decision denying individual ratings in excess of 20 percent for a right and left ankle disability. In particular, the JMPR indicated the Board failed to address whether a separate rating is warranted for bilateral ankle instability noted on the March 2016 private examination, as well as the February 2016 and September 2016 VA examination. Upon further review, the Board also notes that the February 2016 and September 2016 VA examinations show functional loss due to flare ups of the Veteran's ankles. However, both VA examiners indicated that they could not resolve whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups because the Veteran was not experiencing a flare up at the time of the exam. The VA examiners did not indicate that the speculation was due to lack of knowledge within the medical community. As such, another VA examination is required to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). 8. Entitlement to a TDIU is remanded. The October 2020 JMPR indicated that the Board failed to address whether entitlement to a TDIU is reasonably raised by the record. In particular, the Veteran reported impact of his various musculoskeletal disabilities on his ability to perform his work functions as bus driver, including at least one workman compensation claim in 2015. See e.g. VA examinations for the back in February 2016 and September 2016. The Veteran also reported that his ability to work was impeded by his lower extremity radiculopathy, to include a three-month absence due to sciatic nerve treatment. See February 2016 VA examination. Given the above, the issue is reasonably raised. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). As the claims for an increased rating for the Veteran's back, knee, and radiculopathy of the right and left lower extremities are being remanded for further development, the Board will defer adjudication of the intertwined issue of entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Further, VA should obtain authorization and records relating to the Veteran's workman compensation claims and work absences. Finally, the Veteran has not submitted a VA Form 21-8940 TDIU application. On remand, a VA Form 21-8940 should be obtained that details the Veteran's post-service educational and employment history. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 relating to the Veteran's 2015 or 2019 workman's compensation claims. Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. 2. Ask the Veteran to complete a VA Form 21-8940 to show a full educational and employment history. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back, right shoulder, radiculopathy of the bilateral lower extremities, left knee, and bilateral ankle disabilities. 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 examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating each of the Veteran's disabilities under both the old and new criteria, if applicable. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. 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). 4. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.