Citation Nr: 21042442 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 04-34 557 DATE: July 13, 2021 REMANDED 1. Entitlement to a separate compensable rating for a right hip disability rated as part of a combined 10 percent disability rating for degenerative joint disease of the hips and shoulders from October 1, 2002, and entitlement to a separate rating in excess of 10 percent from April 3, 2009, is remanded. 2. Entitlement to separate compensable rating for a left hip disability rated as part of a combined10 percent disability rating for degenerative joint disease of the hips and shoulders from October 1, 2002, and entitlement to a separate rating in excess of 10 percent from April 3, 2009, is remanded. 3. Entitlement to separate compensable rating for a right shoulder disability rated as part of a combined 10 percent disability rating for degenerative joint disease of the hips and shoulders from October 1, 2002, and entitlement to a separate rating in excess of 20 percent from April 3, 2009 and in excess of 30 percent from July 3, 2019, is remanded. 4. Entitlement to separate compensable rating for a left shoulder disability rated as part of a combined 10 percent disability rating for degenerative joint disease from October 1, 2002, and entitlement to a separate rating in excess of 20 percent from April 3, 2009, is remanded. 5. Entitlement to a disability rating evaluation in excess of 20 percent disabling for cervical spine early degenerative disc changes and herniated discs (cervical spine disability), is remanded. 6. Entitlement to initial rating in excess of 30 percent from August 18, 2011, and in excess of 50 percent from September 19, 2017 for an anxiety disorder with primary insomnia, is remanded. 7. Entitlement to a total rating based on individual unemployability (TDIU) prior to April 14, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1982 to September 2002. 1. Entitlement to a separate compensable rating for a bilateral hip disability rated as part of a combined 10 percent disability rating for degenerative joint disease of the hips and shoulders from October 1, 2002, and entitlement to a separate rating in excess of 10 percent from April 3, 2009; and entitlement to a disability rating evaluation in excess of 20 percent disabling for cervical spine early degenerative disc changes and herniated discs (cervical spine disability). Unfortunately, the July 2019 VA examination provided to the Veteran is, in part, inadequate. The Board's April 2017 remand directives included that the examiner "must" provide an opinion on the Veteran' limited motion of the above disabilities since October 2002. This directive was not complied as there is no acknowledgement of this directive in the Veteran's July 2019 VA examination at all. Therefore, the Board finds that the Board's remand directive was not fulfilled and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the Agency of Original Jurisdiction (AOJ) did not follow the prescribed order in which the directives were listed which in turn led to the VA examinations being conducted before VA treatment records were collected and associated with the claims file. As such, the Board cannot be determine that records reviewed in adjudicated the current claims were the same that the VA examiner reviewed in evaluating the status of the Veteran's disability. See Stegall v. West, supra. 2. Entitlement to initial rating in excess of 30 percent from August 18, 2011, and in excess of 50 percent from September 19, 2017 for an anxiety disorder with primary insomnia. The Board notes that the July 2019 VA examination to determine the severity of the Veteran's psychiatric disability is, in part, inadequate on two fronts. One the remand directives included an instruction for the examiner to opine on the severity of the Veteran's psychiatric disability since August 2011. There is no acknowledgement of this directive in the July 2019 VA examination. Two, there is an internal inconsistency in the VA examination where the examiner writes that there is no history of hospitalization or emotional crisis three times in various portions of the examination report while also noting that the Veteran was admitted to the addiction clinica at a VA medical center since 2009. Therefore, the Board finds that the Board's remand directive was not fulfilled and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Entitlement to a total rating based on individual unemployability (TDIU) prior to April 14, 2011. The development requested in connection with the foregoing claims could have bearing on whether an award of TDIU is proper for this period. Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of those other remanded claims. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. Regardless of the Veteran's response, VA treatment records should be collected from the San Juan VAMC and all associated outpatient center and clinics. In particular, the AOJ should retrieve VA treatment records from July 2019 to present should be collected. Any archived records should be retrieved from storage. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After the above development has been completed, schedule the Veteran for an appropriate VA examinations with an appropriate VA examiners (A). HIPS/SHOULDERS/NECK: Schedule the Veteran for an examination to determine the severity of his bilateral hip, bilateral shoulder, and cervical spine disabilities since October 1, 2002. The claims folder must be made available to and reviewed by the examiner. The examiner is to identify all hip, shoulder, and cervical spine pathology found to be present. The examiner should thereafter provide VA with the following information in accordance with the Court's holding in Correia: (i) the examiner must test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for each hip and shoulder as well as the cervical spine; (ii) to the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion of each hip and shoulder as well as the cervical spine since October 1, 2002 (i.e., the extent of the Veteran's pain-free motion); and (iii) in providing the requested opinions regarding the range of motion, the examiner must also comment on any reports of flare-ups to include describing, if possible, any additional degrees of limited motion during these flare-ups. (iv) The examiner should state whether the cervical spine disability is productive of any incapacitating episodes since 2002, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (B). PSYCHIATRIC CONDITION: Schedule the Veteran for an examination to determine the severity of his psychiatric disability since August 18, 2011. The claims folder must be made available to and reviewed by the examiner. After a review of the record on appeal and an examination of the Veteran, the examiner should provide a comprehensive opinion as to the adverse symptomatology attributed to the Veteran's service-connected psychiatric disorder. The examination report must include a complete rationale for all opinions expressed. 3. If any benefit sought on appeal is not granted in full, re-adjudicate the claims, including the TDIU claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Acosta, 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.