Citation Nr: 21042149
Decision Date: 07/12/21	Archive Date: 07/12/21

DOCKET NO. 18-05 984
DATE: July 12, 2021

REMANDED

Entitlement to a disability rating in excess of 40 percent for degenerative arthritis of the thoracolumbar spine with bulging disc is remanded.  

Entitlement to a disability rating in excess of 30 percent for cervical myositis is remanded.

Entitlement to a disability rating in excess of 20 percent for left shoulder impingement is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.  

REASONS FOR REMAND

The Veteran served on active duty from August 1965 to September 1967 and from December 1976 to April 1981.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.   

The Veteran testified at a hearing before the undersigned in December 2019.  

1. Entitlement to a disability rating in excess of 40 percent for degenerative arthritis of the thoracolumbar spine with bulging disc is remanded.  

2. Entitlement to a disability rating in excess of 30 percent for cervical myositis is remanded.

3. Entitlement to a disability rating in excess of 20 percent for left shoulder impingement is remanded.

4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.  

At the December 2019 hearing, the Veteran indicated that his service-connected degenerative arthritis of the thoracolumbar spine with bulging disc, cervical myositis, and left shoulder impingement had worsened since his last VA examination.  The Board notes that the Veteran last underwent a VA examination for the disabilities on appeal in December 2013, approximately six years ago.  Therefore, a more contemporaneous medical examination is warranted.  Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the rating of the disability will be a fully informed one); Caffrey v. Brown, 6 Vet. App. 377 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous").

The Board finds that the claim of entitlement to TDIU is inextricably intertwined with the remanded claims for increased ratings.  The appropriate remedy for an inextricably intertwined issue is to remand it pending resolution of the inextricably intertwined issues.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1. Obtain translations of any untranslated records from Spanish to English.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative arthritis of the thoracolumbar spine with bulging disc, cervical myositis, and left shoulder impingement.  

The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria.  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, or an opinion regarding flare-ups, symptoms, or functional impairment 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. 

3. After ensuring compliance with the above directives, readjudicate the claims, including the claim for a TDIU. 

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Ko, 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.