Citation Nr: 21040577 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 09-30 260 DATE: July 6, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for degenerative joint disease (DJD), myositis, and spondylosis of the cervical spine, is remanded. Entitlement to an initial rating in excess of 20 percent from March 27, 2008, 10 percent from March 24, 2009, and 40 percent from July 22, 2011, for lower lumbar spondylosis is remanded. Entitlement to a rating in excess of 10 percent prior to December 8, 2017, and in excess of 20 percent thereafter for right shoulder supraspinatus tendonitis/subacromial bursitis, claimed as right shoulder condition, is remanded. Entitlement to service connection for right arm pain and burning is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from April 1987 to July 1987 and on active duty from January 2007 to March 2008. Most recently, in April 2017, the Board of Veterans' Appeals (Board) remanded the Veteran's claims in order to afford him adequate VA examinations. See April 2017 Board remand. The claims are now back before the Board. However, the Board finds that additional development is necessary. 1. Increased Rating for Neck Disability 2. Increased Rating for Back Disability 3. Increased Rating for Right Shoulder Disability As a preliminary matter, new VA examinations should be afforded to the Veteran to assess the current severity of his disabilities. The Veteran was last afforded VA examinations in December 2017 for his neck, back, and right shoulder disabilities. Since that time, there have been indications that the conditions may have worsened. See, e.g., May 2021 Veteran statement; see also May 2021 attorney correspondence. Overall, the current level of severity described by the Veteran and his attorney in these statements paint a much more severe disability picture than previously assessed, including decreased range of motion measurements from those recorded during his December 2017 VA examinations. Since the examinations are too remote to be constitute a contemporaneous examination, a new examination is required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). Additionally, the Board finds that the most recent VA examinations are not adequate for rating purposes. Specifically, the December 2017 VA examinations do not comply with the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp v. Shulkin, the Court held that a VA examination is inadequate when the VA clinician does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so." 29 Vet. App. 26, 35 (2017). Here, the Veteran reported that he suffered flare-ups of his neck and right shoulder disabilities during his December 2017 VA examinations. See December 2017 Neck Conditions examination report; see also December 2017 Shoulder and Arm Conditions examination report. However, neither report estimated the range of motion lost during flare-ups, if any. As such, the VA examinations are inadequate for adjudicative purposes. While the Veteran did not report flare-ups of his back on examination in December 2017, he did describe in detail severe flare-ups of his back condition that cause him to drop to the floor and "be rushed to the emergency room" in his May 2021 statement. See May 2021 Veteran statement. As such, on remand the VA examiner 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 of the Veteran's back condition as well. 4. Service Connection for Right Arm Disability The Veteran is claiming service connection for a right arm condition, claimed as pain and burning. An October 2011 VA examiner determined that the Veteran did not have a diagnosis of a right arm condition as there was no pathology. However, the examiner stated that the Veteran needed an electromyography and/or nerve conduction test with his primary care provider. See October 2011 VA examination report. Accordingly, the April 2017 Board remand stated that such tests must be performed. See April 2017 Board remand directives. To date, these tests still do not appear to have been completed. As such, the Board finds that there has not been substantial compliance with its remand directives and remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, the Board notes that pursuant to Note (1) of the General Formula, VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1). Determining whether separate ratings should be awarded for objective neurological complications is part and parcel of an increased rating claim for a cervical or lumbar spine disability. The Veteran submitted a May 2021 private medical opinion by Dr. M.S. See May 2021 Dr. M.S. medical opinion. Notably, Dr. M.S. did not examine the Veteran nor perform any diagnostic testing. However, Dr. M.S. reviewed the Veteran's records and opined that the Veteran's reported right arm pain and burning is likely radiculopathy associated with his service-connected neck and/or back disability. Id. Moreover, the opinion of Dr. M.S. appears to conclude that based on his review of the record, the Veteran suffers from radiculopathy of all the extremities. However, to date the Veteran has not been afforded a VA examination specific to any neurologic abnormalities associated with his service-connected neck and back disabilities. Overall, the Board finds that further development is needed to determine whether the Veteran's reported neurological symptoms he associates with his neck and back conditions are indeed related to his service-connected disabilities. Therefore, remand is required to afford the Veteran with a VA examination to determine if the Veteran's reported neurological symptoms are related to his service-connected neck and back disabilities, and if so, their severity. 5. TDIU Because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his neck, back, right shoulder, and right arm disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After #1 above has been completed, schedule the Veteran for examinations by appropriate examiners to determine the current severity of his service-connected neck, back, and right shoulder disabilities. The examiner 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 examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner 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. The examiner should specifically consider evidence of flare-ups as described by the Veteran and his attorney in the May 2021 statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 3. After #1 above has been completed, schedule the Veteran for an appropriate examination to determine the nature and etiology of any associated objective neurologic abnormalities associated with his service-connected neck and back disabilities, including but not limited to right arm pain and burning. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify any and all neurological conditions present. Then, the examiner is asked to respond to the following: (a.) Is it at least as likely as not that any identified neurological condition was incurred in, or otherwise related to, the Veteran's time on active service? (b.) Is it at least as likely as not that any identified neurological condition is caused or aggravated by the Veteran's service-connected neck or back disability? All tests and studies deemed appropriate, specifically an electromyography and/or nerve conduction velocity testing should be performed. If such testing, which was recommended by the October 2011 VA examiner, is deemed not necessary, the examiner should explain his/her conclusions in this regard. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.