Citation Nr: 21041421 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-12 518 DATE: July 9, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to March 26, 2019 and in excess of 40 percent thereafter for mechanical low back pain syndrome with lumbosacral strain, degenerative arthritis, and intervertebral disc syndrome (IVDS) is remanded. Entitlement to a rating in excess of 20 percent for right shoulder rotator cuff tendonitis with degenerative arthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 10 percent for a right iliopsoas strain with arthritis is remanded. Entitlement to a rating in excess of 10 percent for impairment of the right thigh is remanded. Entitlement to a rating in excess of 10 percent for left iliopsoas strain with trochanteric bursitis is remanded. Entitlement to a rating in excess of 10 percent for impairment of the left thigh is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 2002 to February 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision. The case was previously before the Board in February 2020. In that decision, the Board denied ratings in excess of 10 percent for right and left iliopsoas strain; granted increased, 10 percent ratings for right and left impairment of the thigh; denied a rating in excess of 10 percent for left knee patellofemoral syndrome; and remanded the issues of entitlement to a rating in excess of 20 percent for mechanical low back pain syndrome and entitlement to a rating in excess of 20 percent for right shoulder rotator cuff tendonitis with degenerative arthritis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) and in a February 2021 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the denial of higher ratings for the Veteran's right and left hip disabilities and for the Veteran's left knee patellofemoral syndrome. The Board notes that in June 2020, the Veteran appointed a private attorney as his representative. The Board recognizes the change in representation. Finally, the Board notes that the appeal of entitlement to a TDIU was addressed in a January 2018 Statement of the Case; however, the Veteran did not include the issue of a TDIU in his February 2018 substantive appeal, and entitlement to a TDIU was not addressed in the February 2020 Board decision. That stated, he filed an updated application for a TDIU in January 2021, asserting that his service-connected back pain and mental health disability prevented him from securing or following a substantially gainful occupation. Entitlement to a TDIU was denied in a June 2021 rating decision. While the Veteran has not appealed the June 2021 denial of a TDIU, as it is part and parcel of the Veteran's higher rating for his service-connected lumbar spine disability, which is presently before the Board, the Board will address the issue of entitlement to a TDIU herein. 1. Entitlement to a rating in excess of 20 percent prior to March 26, 2019 and in excess of 40 percent thereafter for mechanical low back pain syndrome with lumbosacral strain, degenerative arthritis, and IVDS. The record shows that the Veteran most recently underwent a VA spine examination in April 2021. At that examination, the examiner noted that the Veteran's IVDS had required physician-required bed rest having a total duration of at least six weeks over the prior 12 months, a finding that the examiner noted was based on the Veteran's own reports without supporting medical documentation. That stated, the record shows that in December 2020, the Veteran told a VA provider that he was receiving private treatment that included pain injections. Given that there are no private records of treatment in the file dating beyond May 2020, taken with the Veteran's statements to the December 2020 VA provider and the April 2021 VA examiner, the Board finds that a remand is required to give the Veteran the opportunity to submit any outstanding private treatment records. 2. Entitlement to a rating in excess of 20 percent for right shoulder rotator cuff tendonitis with degenerative arthritis. 3. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. The Veteran was last examined for his left knee patellofemoral pain syndrome in October 2017. His right shoulder was last examined in March 2019. Since those examinations, SSA records have been associated with the file and include private records of treatment as recently as 2020 for the Veteran's knee pain. In addition, VA treatment records have been added to the file and indicate that the Veteran's right shoulder is potentially worse. Indeed, a January 2021 VA note reflects that the Veteran requested magnetic resonance imaging (MRI) for his right shoulder because it had become "so much worse." Given the time that has elapsed since his last VA examinations, and the records showing potential worsening of the right shoulder and left knee, the Board believes that contemporaneous VA examinations are needed before a fully informed decision can be made as to the propriety of the disability ratings assigned for the Veteran's right shoulder and left knee patellofemoral pain syndrome. The examinations must comply with Sharp v. Shulkin, 20 Vet. App. 26, 33 (2017), and the examiner should include assessments of any functional loss during flare-ups, or upon repetitive motion. 4. Entitlement to a rating in excess of 10 percent for a right iliopsoas strain with arthritis. 5. Entitlement to a rating in excess of 10 percent for impairment of the right thigh. 6. Entitlement to a rating in excess of 10 percent for left iliopsoas strain with trochanteric bursitis. 7. Entitlement to a rating in excess of 10 percent for impairment of the left thigh. In denying ratings higher than 10 percent for the Veteran's right and left iliopsoas strain with arthritis and right and left thigh impairment, the Board, in February 2020, relied upon the findings of an October 2017 VA examination. The February 2021 JMPR noted that the October 2017 VA examination failed to fully comply with the Court's holdings in Correia v. McDonald, 28 Vet. App. 158, 170 (2016), Mitchell v. Shinseki, 25 Vet. App. 32 (2011), and DeLuca v. Brown, 8 Vet. App. 202 (1995). Specifically, the parties agreed that the examiner failed to (1) address at what point incoordination, weakened movement, and excess fatigability, or pain sets in; (2) discuss whether there is pain on motion and, if so, at what point in the range of motion the pain sets in and whether it causes functional loss; (3) opine on whether pain could significantly limit functional ability during flare-ups; and (4) portray any functional loss, if feasible, in terms of degrees of additional range of motion. Finally, the examiner failed to perform or include the results of the range-of-motion testing described in the final sentence of 38 C.F.R. § 4.59. See Correia, 28 Vet. App. at 170. Given the foregoing, on remand, the Veteran should undergo a hip examination that complies with the provisions of Correia, Mitchell, and DeLuca. As per the terms of the JMPR, the examiner must also offer a retrospective opinion addressing the severity and progression of the Veteran's hip disabilities. 8. Entitlement to a TDIU. The Veteran's claim for a TDIU is inextricably intertwined with his claims for increased ratings. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board will defer consideration of that issue at this time. The matters are REMANDED for the following action: 1. Ask the Veteran to submit private treatment records from the facility (or facilities) at which he receives treatment for his back, or alternatively, to complete a VA Form 21-4142 records release form for such records. Take all appropriate action to obtain identified treatment records. 2. Schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his right shoulder rotator cuff tendonitis with degenerative arthritis and left knee patellofemoral syndrome. The examiner(s) should provide a full description of the disabilities and report all signs and symptoms necessary for evaluation of the Veteran's disabilities under the rating criteria. In particular, range of motion testing in active motion, passive motion, weight-bearing, and non-weight bearing should be accomplished, where possible. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, the examiner(s) must: (a.) Address at what point incoordination, weakened movement, and excess fatigability, or pain, sets in; (b.) Discuss whether there is pain on motion and, if so, at what point in the range of motion the pain sets in and whether it causes functional loss; (c.) Opine on whether pain could significantly limit functional ability during flare-ups and after repetitive use; (d.) Estimate any functional loss, if feasible, in terms of degrees of additional range of motion. The examiner should also discuss whether knee instability exists, and if so, discuss its severity. The examiner should consider the Veteran's reports of popping, pain and having the sensation of the knee giving out. 3. Schedule the Veteran for a VA examination with an appropriate medical examiner to evaluate the current nature and severity of the Veteran's service-connected right and left hip conditions. Range of motion testing in active motion, passive motion, weight-bearing, and non-weight bearing in both hips should be accomplished. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, the examiner must: (a.) Address at what point incoordination, weakened movement, and excess fatigability, or pain, sets in; (b.) Discuss whether there is pain on motion and, if so, at what point in the range of motion the pain sets in and whether it causes functional loss; (c.) Opine on whether pain could significantly limit functional ability during flare-ups and after repetitive use; (d.) Estimate any functional loss, if feasible, in terms of degrees of additional range of motion. Importantly, as ordered by the parties to the JMPR, the examiner who performs the hip examination should provide a retrospective opinion as to the severity and progression of the Veteran's hip disabilities, to include with consideration of the findings outlined in the February 2015 and October 2017 examination reports. The examiner who provides the opinion is requested to determine whether the range of motion results would have been reduced if tested in both active and passive motion and in weight-bearing and non-weight bearing. To the examiner's best ability, the additional range of motion loss should be described in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. Additionally, the examiner should provide at which point in the Veteran's range of motion that pain started or explain why such measurements were not provided. In discussing the February 2015 and October 2017 examinations, the examiner must also attempt to identify whether pain noted on flare-ups could significantly limit functional ability during flare-ups or upon repetitive use. The examiner is requested to offer an estimation in terms of additional range of motion lost during such flare-ups. If the examiner is unable to do so, he or she must explain why an estimate is not possible. 4. Then, readjudicate the appeals and if any benefit sought remains denied, issue the Veteran and his attorney a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.