Citation Nr: 21039956 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 96-45 633 DATE: July 1, 2021 REMANDED For the period prior to September 27, 2002, entitlement to a disability rating higher than 10 percent for left elbow arthritis is remanded. For the period prior to September 27, 2002, entitlement to a disability rating higher than 10 percent for right elbow arthritis is remanded. For the period prior to September 27, 2002, entitlement to a disability rating higher than 10 percent for right hip arthritis is remanded. For the period prior to September 27, 2002, entitlement to a disability rating higher than 10 percent for left hip arthritis is remanded. For the period prior to September 27, 2002, entitlement to a disability rating higher than 20 percent for right shoulder bursitis with arthritis is remanded. For the period prior to September 27, 2002, entitlement to a compensable disability rating for left shoulder arthritis is remanded. For the period prior to September 27, 2002, entitlement to a disability rating higher than 10 percent for left wrist arthritis is remanded. For the period prior to September 27, 2002, entitlement to a disability rating higher than 10 percent for right knee arthritis is remanded. For the period prior to September 27, 2002, entitlement to a compensable disability rating for left knee arthritis is remanded. For the period prior to September 27, 2002, entitlement to a disability rating higher than 10 percent for right ankle arthritis is remanded. For the period prior to September 27, 2002, entitlement to a disability rating higher than 10 percent for left ankle arthritis is remanded. For the period prior to September 27, 2002, entitlement to a disability rating higher than 10 percent for arthritis of the bilateral hands is remanded. Entitlement to disability rating for cervical spine arthritis higher than 40 percent prior to September 22, 2002 and higher than 20 percent thereafter is remanded. Entitlement to a disability rating higher than 20 percent for lumbosacral spine arthritis is remanded. Entitlement to a disability rating higher than 20 percent for right upper extremity radiculopathy prior to December 19, 2017 and higher than 40 percent thereafter is remanded. Entitlement to a disability rating higher than 20 percent for left upper extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to July 1969. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from February 1996 and November 2002 rating decisions from the Veterans Affairs (VA) Regional Office (RO). In February 1992, the Veteran filed a claim for service connection for a cervical spine disability, as well as traumatic arthritis in all joints. In February 1996, the RO denied the claim for service connection for the cervical spine. The Veteran filed a notice of disagreement (NOD) in March 1996, after which the RO issued a May 1996 statement of the case (SOC). The Veteran perfected the cervical spine claim by way of a May 1996 VA Form 9. In January 1999, the Board issued a decision denying the cervical spine claim, after which the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In January 2001, the Court vacated the Board decision and remanded the issue for additional development in accordance with a joint motion for remand (JMR), which included the RO's failure to adjudicate the Veteran's claim for traumatic arthritis in all joints for the issuance of a statement of the case (SOC). In July 2001, the Board remanded the issues for action in accordance with the JMR. In November 2002, the RO then issued a decision addressing the joints. The Veteran filed an NOD regarding all ratings and effective dates assigned, after which the RO issued a June 2004 SOC. The Veteran perfected these claims, as well as a separate claim related to residuals of Agent Orange exposure, in August 2004. The Board remanded the claims in November 2005 and decided these issues in December 2008. The Veteran again appealed to the Court. In May 2010, the Court issued an Order vacating and remanding all of the rating and effective date issues for action in accordance with a JMR. The Veteran abandoned the appeal of the Agent Orange residuals claim at that time In December 2010, the Board decided each of the effective date claims on appeal and remanded the increased rating claims for new and adequate VA examinations. In January 2013 and August 2017, the Board remanded the claims for development of the record, to include VA and private treatment records and updated VA examinations. In November 2018, the Board dismissed the claims for higher ratings for the service-connected disabilities of the bilateral shoulders, bilateral hands, bilateral elbows, bilateral hips, bilateral knees, bilateral ankles, and left wrist, per the Veteran's request to withdrawal his appeal for higher ratings for such issues after September 27, 2002 (at which point the Veteran was in receipt of a combined 100 percent rating). For the period prior to September 27, 2002, the claims for: 1. a disability rating higher than 10 percent for left elbow arthritis, 2. a disability rating higher than 10 percent for right elbow arthritis, 3. a disability rating higher than 10 percent for right hip arthritis, 4. a disability rating higher than 10 percent for left hip arthritis, 5. a disability rating higher than 20 percent for right shoulder bursitis with arthritis, 6. a compensable disability rating for left shoulder arthritis, 7. a disability rating higher than 10 percent for left wrist arthritis, 8. a disability rating higher than 10 percent for right knee arthritis, 9. a disability rating higher than 10 percent for left knee arthritis, 10. a disability rating higher than 10 percent for right ankle arthritis, 11. a disability rating higher than 10 percent for left ankle arthritis, 12. a disability rating higher than 10 percent for arthritis of the bilateral hands, and the claims for higher ratings for: 13. cervical spine arthritis rated at 40 percent prior to September 22, 2002 and 20 percent thereafter, 14. lumbosacral spine arthritis rated at 20 percent, 15. right upper extremity radiculopathy rated at 20 percent prior to December 19, 2017 and 40 percent thereafter, and 16. left upper extremity radiculopathy rated at 20 percent are remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the last two Remands, retrospective opinions were necessary for the current claims. The Board requested retrospective opinions in the prior Remands to address the ranges of motion and functional impairment findings in all of the relevant joints prior to September 27, 2002. Although new VA examinations were provided in November 2019, these findings, generally, were not responsive to the request. The Board requested that the examiners' findings address the respective appeal periods for each disability (from the respective effective dates of service connection to September 27, 2002). The November 2019 VA examination noted some reports from the Veteran regarding his history, but did not include any findings for the requested appeal periods. Rather, the findings provided specifically addressed the current severity of the involved disabilities. In contrast, the findings requested from the Board were for the period prior to September 27, 2002. Additionally, the prior Board Remand also specifically noted that there was medical evidence which is in tension with the 2017 VA examiner's conclusion that there have been no material changes in the severity of the relevant conditions. The Board remand explained that VA treatment records, dated April 1999, indicate the use of ibuprofen during flare-ups manifesting in pain in the Veteran's neck, shoulder, hips, knees, and ankles. The notes did not indicate how often the Veteran experienced flare-ups or how long flare-ups lasted when they occurred. According to private medical records, dated in June 2002, the Veteran denied flare-ups with respect to his elbows, hips, left shoulder, and lumbar spine. He mentioned periods of pain, weakness, and stiffness in his ankles. The Board agreed that such evidence, as noted in the August 2018 Appellant's brief, indicated that the Board should request a medical opinion on the severity of the Veteran's claims over time. The November 2019 VA examination does not appear to have considered such pertinent evidence prior to finding that there was no objective evidence or subjective report of any change in the severity of the Veteran's conditions during the period before September 27, 2002. New VA medical opinions are necessary. As for the lumbar and cervical spine claims, including the radiculopathy claims, the Board also requested that the examiners determine their current level of severity, in addition to retrospective opinions for the period prior to September 27, 2002. The Board notes that although a November 2019 VA examination was obtained for the cervical spine, no new VA examination was obtained for the lumbar spine. Moreover, for the spine claims, the November 2019 VA examiner also did not provide the specifically requested findings responsive to ALL the rating criteria applicable for the entirety of the appellate period under the previously applicable and revised rating criteria. The VA medical opinion provider should have provided findings responsive to the cervical and lumbar spine rating criteria in effect prior to September 23, 2002 and effective from that date, as well as, the current rating criteria effective September 26, 2003. Neither the VA examiner, nor the AOJ in its July 2020 SSOC, considered the rating criteria under prior spine regulations. The matters are REMANDED for the following actions: 1. For the (a) cervical spine disability, (b) lumbar spine disability and (c) associated bilateral upper extremity radiculopathy, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of each service-connected disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the applicable rating criteria to include findings applicable to the rating criteria in effect prior to September 23, 2002, effective from September 23, 2002, and criteria effective September 26, 2003. In so doing, the examiner 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). In so doing, 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). 2. For the claimed service-connected bilateral shoulder, bilateral elbow, bilateral hip, bilateral knee, bilateral ankle, and bilateral hand disabilities, the left wrist disability, as well as, his lumbar spine and cervical spine disabilities and bilateral upper and lower extremity radiculopathy, obtain retrospective medical opinions for each disability's respective appeal period prior to September 27, 2002. All pertinent evidence should be made available to and reviewed by the examiner. The entire claims file should be reviewed, to include prior VA examinations, VA and private medical records, and lay evidence (such as the August 31, 2018 Appellant's brief statement and evidence discussed in the Remand narrative above and the April 3, 2017 correspondence). To the extent possible, the examiner should provide a full description of EACH disability and report all signs and symptoms necessary for evaluating EACH disability prior to September 27, 2002. For each disability, to the extent possible, the examiner should address functional impairment on repeated use or during flare-ups in terms of additional degrees of range of motion loss. Also, to the extent possible, the examiner should discuss whether the extent of the disability as shown by this type of testing can be retroactively applied when comparing the findings with the prior VA examination reports. In addition to dictating objective test results, to the extent possible, the examiner's report should fully describe the effects of the Veteran's joint and neurological disabilities on his occupational functioning and daily activities. (Continued on the next page) 3. After the above development has been completed, the Agency of Original Jurisdiction (AOJ) should readjudicate the remaining issues on appeal to specifically include the criteria in effect prior to September 23, 2002, effective from September 23, 2002, and criteria effective September 26, 2003 for the spine related claims. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.