Citation Nr: 21040181 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 09-17 751 DATE: July 2, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for limitation of motion of the thoracolumbar spine associated with polyarthralgia is remanded. Entitlement to an initial rating in excess of 20 percent for limitation of motion of the right ankle associated with polyarthralgia is remanded. Entitlement to an initial rating in excess of 20 percent for limitation of motion of the left ankle associated with polyarthralgia is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the cervical spine associated with polyarthralgia prior to May 4, 2017, and in excess of 20 percent from that date, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the right shoulder associated with polyarthralgia prior to May 4, 2017, in excess of 20 percent from May 4, 2017, and in excess of 30 percent from January 24, 2018, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the left shoulder associated with polyarthralgia prior to May 4, 2017, and in excess of 20 percent from that date, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the right elbow associated with polyarthralgia (flexion) prior to January 24, 2018, and in excess of 50 percent from that date, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the right elbow (supination and pronation) prior to January 24, 2018, and in excess of 30 percent from that date, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the left elbow (flexion) associated with polyarthralgia prior to January 24, 2018, and in excess of 40 percent from that date, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of left elbow (supination and pronation) associated with polyarthralgia prior to January 24, 2018, and in excess of 20 percent from that date, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the right wrist associated with polyarthralgia is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the left wrist associated with polyarthralgia is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the right hip associated with polyarthralgia is remanded. Entitlement to an initial compensable rating for right hip limitation of flexion associated with polyarthralgia from May 4, 2017, and entitlement to a separate rating prior to that date, is remanded is remanded. Entitlement to an initial compensable rating for right hip thigh impairment (abduction, adduction, rotation) associated with polyarthralgia from January 24, 2018, and entitlement to a separate rating prior to that date, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the left hip associated with polyarthralgia is remanded. Entitlement to an initial compensable rating for left hip limitation of flexion associated with polyarthralgia from May 4, 2017, and entitlement to a separate rating prior to that date, is remanded. Entitlement to an initial compensable rating for left hip thigh impairment (abduction, adduction, rotation) associated with polyarthralgia from January 24, 2018, and entitlement to a separate rating prior to that date, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the right knee associated with polyarthralgia is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of motion of the left knee associated with polyarthralgia is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy from May 4, 2017, and entitlement to a separate rating for right lower extremity radiculopathy prior to that date, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1989 to October 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board in July 2020, at which time they were remanded for additional development. The Board acknowledges that its July 2020 Remand also addressed the issue of entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU). Although the Veteran's combined evaluation for compensation was already 100 percent effective January 31, 2002, at issue was whether the Veteran was entitled to a TDIU based on a single service-connected disability prior to March 24, 2008, for purposes of determining whether the Veteran qualified for compensation at the housebound rate. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). In a September 2020 Rating Decision, the RO granted entitlement to special monthly compensation based on the housebound criteria being met effective September 22, 1999, awarding TDIU retroactively based on a single disability (chronic renal insufficiency). As this constitutes a full grant of the benefits sought on appeal with respect to this issue, it is no longer before the Board. The Veteran seeks entitlement to higher ratings for various service-connected disabilities, to include disabilities of the thoracolumbar spine, right ankle, left ankle, cervical spine, right shoulder, left shoulder, right elbow, left elbow, right wrist, left wrist, right hip, left hip, right knee, and left knee, as well as right lower extremity radiculopathy. The Board emphasizes that these disabilities arose from a common etiology: polyarthralgia due to hepatitis C. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to all claims on appeal, the Board notes that the Veteran receives regular treatment through VA for her service-connected hepatitis C and related symptomatology. A review of the record reveals that the most recent VA treatment records associated with the claims file are dated in July 2020, approximately one year ago. These records, originating from the Spark M. Matsunaga VA Medical Center in Honolulu, Hawaii, indicated that the Veteran relocated in late 2019 and established primary care at the Washington DC VA Medical Center in Washington, D.C., where she would be followed for her service-connected hepatitis C and related symptomatology. Crucially, however, no VA treatment records from the Washington DC VA Medical Center have been associated with the claims file. Moreover, the record suggests that additional medical records relevant to the Veteran's hepatitis C and related symptomatology are outstanding, as the Veteran submitted correspondence in October 2020 indicating that she continued to experience falls due to polyarthralgia caused by hepatitis C since relocating to Washington, D.C. VA treatment records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (b) (West 2014); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Here, as there is evidence of outstanding VA treatment records relevant to the claims addressed herein which have not yet been associated with the claims file, the Board finds that the RO must associate with the record any and all outstanding VA treatment records dated from December 2019 to the present from the Washington DC VA Medical Center. Additionally, the Board acknowledges that the Veteran was last provided with VA examinations relevant to her various disabilities related to polyarthralgia in January 2018, over three years ago. However, a review of the record suggests that the Veteran's polyarthralgia has worsened since January 2018. Specifically, in February 2018, the Veteran began to seek treatment for persistent pain in the back of her knee as well as leg pain with weight bearing. In February 2019, she indicated that pain associated with her cervical spine and lumbar spine symptomatology became so severe that it interfered with sleep. Moreover, in correspondence received in October 2020, the Veteran reported falling since returning to Washington, D.C., in December 2019 as a result of abnormal ambulation caused by limited motion in her feet, ankle, knee, thigh, hip, back, and neck joints. The United States Court of Appeals for Veterans Claims (Court) has held that a veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist a veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Thus, on remand, additional VA examinations should be scheduled to assess the current severity and manifestations of the Veteran's various disabilities related to polyarthralgia due to hepatitis C. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from December 2019 to the present from the Washington DC VA Medical Center in Washington, D.C., and all associated outpatient clinics. All attempts to obtain these records must be documented in the claims file. The Veteran and her representative must be notified of any inability to obtain the requested documents. 2. Provide the Veteran with additional VA examinations to determine the severity her various service-connected disabilities related to polyarthralgia due to hepatitis C, to include limited motion of the thoracolumbar spine, right ankle, left ankle, cervical spine, right shoulder, left shoulder, right elbow, left elbow, right wrist, left wrist, right hip, left hip, right knee, and left knee, as well as right lower extremity radiculopathy. The examiner should review the Veteran's claims file in conjunction with the examination. Any indicated studies or diagnostic tests, to include magnetic resonance imaging (MRI), electromyography (EMG), and/or nerve conduction velocity (NCV) testing, should be performed. The examiner should test the range of motion of the various joints in active motion, passive motion, weight-bearing, and nonweight-bearing. Range of motion studies should be performed with the use of a goniometer. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then he or she should clearly explain why that is so. (Continued on the next page) 3. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claims. If any claim on appeal remains denied, then the Veteran and her representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.