Citation Nr: 21041332 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-28 126 DATE: July 8, 2021 REMANDED Entitlement to a rating in excess of 20 percent for residuals, fracture, right patella, postoperative (right knee disability) is remanded. Entitlement to a disability rating in excess of 10 percent for painful limitation of motion of the right knee is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), based solely on the Veteran's service-connected left lower extremity radiculopathy, is remanded. Entitlement to special monthly compensation is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to July 1975 and from November 1976 to July 1979. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This case has a long procedural history which the Board will summarily review. An April 2018 Board decision, inter alia, dismissed the Veteran's claims for increased rating for left lower extremity radiculopathy and right knee disability for lack of jurisdiction. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Memorandum Decision, the Court set aside the Board's decision dismissing the foregoing claims and remanded those matters for readjudication. With regard to the left lower extremity radiculopathy and right knee disability claims, the Court instructed the Board to provide the Veteran with due process required by 38 C.F.R. § 20.101(d)an additional 60 days to respond to potential jurisdictional defects. In May 2020, the Board found that there was no jurisdictional defect and proceeded to adjudicate the claims. The Veteran again appealed the May 2020 decision to the Court. In March 2021, the Court approved the parties' joint motion for partial remand. At the outset, the Board notes that the parties indicated therein that while he has a TDIU based on his service-connected disabilities taken together, the Veteran now argues that a TDIU rating is appropriate based solely on his left lower extremity radiculopathy. Therefore, the issue of entitlement to a TDIU based solely on the Veteran's left lower extremity radiculopathy is properly before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). Additionally, the parties agreed that the issue of SMC has been inferred from the record. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (finding that a claim for an increased rating can include entitlement to SMC as an inferred issue). Accordingly, the issues have been separately characterized in the title page of this decision. The Board will discuss each in further detail in the remand section below. 1. Entitlement to a rating in excess of 20 percent for residuals, fracture, right patella, postoperative (right knee disability) is remanded. 2. Entitlement to a disability rating in excess of 10 percent for painful limitation of motion of the right knee is remanded. The joint remand explained the deficiencies in the Board's May 2020 decision. Regarding any right knee instability, they explained that the Board, in denying an increased rating, failed to explain why the Veteran's right knee instability was "moderate" rather than "severe." Second, they explained that the Board failed to adequately identify what criteria constitutes "severe" recurrent subluxation or lateral instability. The parties directed the Board to explain the criteria used to determine what constitutes "moderate" and "severe" incomplete paralysis. Regarding any right knee limitation of motion, the parties explained that the Board relied on inadequate August 2010 and June 2017 VA examinations. The parties noted that these VA examinations failed to conduct the testing required under 38 C.F.R. § 4.59. Correia v. McDonald, 28 Vet. App. 158, 165 (2016). It directed the Board to obtain an adequate VA examination that complies with Correia. As stated in the parties' joint motion, the August 2010 and June 2017 VA examinations fail Correia and are therefore inadequate. As such, the Board finds the Veteran should be afforded a new VA examination in order to determine the current nature and severity of his right knee instability and limitation of motion. 3. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. The joint motion explained that the Board erred by failing to provide an adequate statement of reasons and bases for why the Veteran was not entitled to a higher disability rating for his left lower extremity radiculopathy. They first explained that the Board "failed to adequately address" the Veteran's radiculopathy symptoms. Demonstratively, the parties identified that the Veteran reported that he was forced to stop working because of his lower extremity radiculopathy. The parties directed the Board to explain why the Veteran's report "that he stopped working because of his radiculopathy did not demonstrate moderate incomplete paralysis." Second, the parties explained that the Board failed to identify which criteria it used to analyze the subjective terms included in Diagnostic Code 8520, to include "moderate" incomplete paralysis, in its discussion. The Veteran last participated in a VA examination for his left lower extremity radiculopathy in June 2017. Therein, the VA examiner estimated that the Veteran exhibited mild incomplete paralysis that failed to impact his ability to work. As noted by the parties' joint motion, the Veteran submitted a statement in April 2020 arguing that he has "completely absent deep tendon reflexes . . . suffers from severe radicular pain with limping, which requires the use of a cane and caused frequent missed work." The Veteran also stated that "his sciatic pain was so severe that he became unable to work." Given the above, it appears as though the Veteran's left lower extremity radiculopathy worsened since his last VA examination. Of note, the June 2017 VA examiner estimated that his radiculopathy did not impact his ability to work, while the lay evidence as recent as April 2020 shows that it did. Relevant here is the VA's duty to provide the Veteran with a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the indications that the Veteran's left lower extremity radiculopathy worsened since his last June 2017 VA examination, remand is required to determine the current nature and severity of this service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 4. Entitlement to a total disability rating based on individual unemployability (TDIU), based solely on the Veteran's service-connected left lower extremity radiculopathy, is remanded. 5. Entitlement to special monthly compensation is remanded. The parties' joint motion explained that the Board erred in not considering whether the Veteran was entitled to SMC based on the April 2020 argument that he is unable to work solely due to his left lower extremity radiculopathy. Under 38 U.S.C. § 1114(s)(1), SMC is payable at the housebound rate when a veteran has a service-connected disability rated as 100 percent disabling, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more or (2) is permanently housebound because of a service-connected disability or disabilities. Since September 2013, the combined total rating of the Veteran's service-connected disabilities of posttraumatic stress disorder, right knee, left knee, lumbar, and tinnituswithout considering the LLE radiculopathywas greater than 60 percent. As such, the Veteran may qualify for SMC at the household rate if his LLE radiculopathy alone is rated at 100 percent. Two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered. Because a decision on the other issues remanded here could significantly impact a decision on the issues of TDIU, based solely on his left lower extremity radiculopathy, and the inferred claim for SMC, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of these inextricably intertwined claims is therefore required as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate examiner to address the prior and current severity of his service-connected right knee disability. The complete claims file should be available to, and reviewed by, the examiner in connection with the examination. All indicated tests and studies should be accomplished and all findings should be reported in detail. The examiner must conduct range of motion testing (expressed in degrees) of the knees on both active motion and passive motion and in both weight bearing and non-weight bearing. If the examiner is unable to conduct the required testing on any identified joint or concludes that the required testing is not necessary in this case, he or she must clearly so state, and explain why. The examiner must render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination of the right knee. If pain on motion in any identified joint is observed, the examiner should indicate the point at which pain begins. Also, the examiner must describe the frequency, duration, characteristics, severity, and functional loss during flare-ups of the right knee disability and/or with repeated use over a period of time. If the examination is not conducted during a flare-up, the examiner must indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner must express any such additional functional loss in terms of additional degrees of limited motion. If the examiner is unable to provide any of the required findings as discussed above, he or she must clearly so state, and explain why that is so. 2. Then, schedule the Veteran for an examination with an appropriate examiner to address the prior and current severity of his service-connected left lower extremity radiculopathy. The complete claims file should be available to, and reviewed by, the examiner in connection with the examination. All indicated tests and studies should be accomplished and all findings should be reported in detail. The examiner must specifically discuss the symptoms leading to any characterization of the Veteran's left lower extremity radiculopathy as mild, moderate, moderately severe, or severe. The functional loss, to include the impact the Veteran's left lower extremity radiculopathy has on his employability, must be discussed. When doing so, the examiner must specifically comment on the Veteran's April 2020 contentions that he has "completely absent deep tendon reflexes [and] suffers from severe radicular pain with limping, which requires the use of a cane and caused frequent missed work." The VA examiner is asked to particularly focus on his argument that "his sciatic pain was so severe that he became unable to work." In other words, the VA examiner must discuss the functional impacts solely due to his left lower extremity radiculopathy. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.