Citation Nr: 21042580 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 12-05 505 DATE: July 13, 2021 REMANDED The issue of entitlement to a disability rating in excess of 10 percent prior to March 7, 2018, and in excess of 30 percent from March 7, 2018, for degenerative joint disease, right knee, is remanded. The issue of entitlement to an initial disability rating in excess of 50 percent for limitation of extension, right knee, is remanded. The issue of entitlement to an initial disability rating in excess of 10 percent for instability, right knee, is remanded. The issue of entitlement to a disability rating in excess of 10 percent for degenerative joint disease, left knee, is remanded. The issue of entitlement to an initial disability rating in excess of 30 percent for limitation of extension, left knee, is remanded. The issue of entitlement to an initial disability rating in excess of 10 percent for instability, left knee, is remanded. The issue of entitlement to a disability rating in excess of 10 percent for left elbow degenerative joint disease is remanded. The issue of entitlement to a disability rating in excess of 10 percent for right elbow degenerative joint disease is remanded. The issue of entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy, femoral, is remanded. The issue of entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy, femoral, is remanded. The issue of entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy, sciatic, is remanded. The issue of entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy, sciatic, is remanded. The issue of entitlement to an initial disability rating in excess of 20 percent for right upper extremity radiculopathy is remanded. The issue of entitlement to a disability rating in excess of 30 percent for sinusitis with headaches is remanded. The issue of entitlement to a disability rating in excess of 10 prior to November 4, 2011, and in excess of 20 percent from November 4, 2011, for left shoulder arthritis, is remanded. The issue of entitlement to a disability rating in excess of 10 percent prior to March 7, 2018, and in excess of 20 percent from March 7, 2018, for right shoulder arthritis, is remanded. The issue of entitlement to a disability rating in excess of 20 percent for degenerative joint disease, lumbar spine with mild scoliosis, is remanded. The issue of entitlement to a disability rating in excess of 20 percent for cervical spine C3-4 through C6-7 degenerative joint disease is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1972 to June 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board denied entitlement to increased ratings for the issues listed above. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a June 2020 Joint Motion for Partial Remand (JMR), vacated the May 2019 Board decision and remanded the issues to the Board for readjudication. Entitlement to increased ratings for bilateral knee disabilities; bilateral elbow disabilities; bilateral lower extremity sciatic and femoral radiculopathy; right upper extremity radiculopathy; and sinusitis with headaches. The parties to the June 2020 JMR agreed that the Board erred by not ensuring that relevant records from the Social Security Administration (SSA) were obtained. Specifically, in a January 2019 correspondence, the Veteran stated that he applied for Social Security Disability. However, the record does not indicate that VA attempted to request the Veteran's Social Security records, notwithstanding the Board's prior remand directives instructing that the Social Security records should be obtained. The issues on appeal must be remanded so that efforts may be made to obtain the Veteran's outstanding relevant SSA records. Additionally, the parities to the June 2020 JMR agreed that the Board erred by not obtaining private treatment records. Specifically, the Veteran submitted a statement in support of his claim in January 2018 identifying Dr. Y. and Dr. F. as health care providers; however, the record does not reflect that VA requested or obtained the private treatment records. The issues on appeal must be remanded so that efforts may be made to obtain the Veteran's outstanding relevant private treatment records. Entitlement to increased ratings for cervical spine disability; thoracolumbar spine disability; and bilateral shoulder disabilities. The parties to the June 2020 JMR agreed that the May 2019 Board decision failed to provide an adequate reasons or bases to support its denial of the Veteran's claims for increased ratings for cervical spine disability, thoracolumbar spine disability and bilateral shoulder disability. Specifically, a January 2018 Board remand requested an opinion to determine the extent of any additional limitation of motion due to pain during flare-ups and to estimate functional loss during flare-ups in terms of additional degrees of limited motion. The VA examiner was instructed that if the examiner was unable to estimate loss of range of motion the examiner must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up. The parties noted that the Veteran was provided VA examination in March 2018. The VA examiner opined that it was not possible to determine, without resorting to mere speculation, to estimate loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. As the VA examiner did not provide an estimate of loss of range of motion during flare-ups, the March 2018 VA examination is inadequate for decision making purposes and does not substantially comply with the Board's January 2018 remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). Entitlement to TDIU The claim for TDIU is inextricably intertwined with the Veteran's claims for increased ratings. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Contact the SSA and request all records relating to the Veteran's claim for disability benefits. Any negative response must be included in the claims file and the Veteran notified accordingly. 2. Contact the Veteran and request that he complete and submit to VA a signed authorization for disclosure of medical records to VA for each private medical health care provider from whom he has received treatment for the disabilities at issue on appeal. The Board is specifically interested in records from Dr. Y. and Dr. F. After receiving any completed authorization form(s), undertake all appropriate efforts to attempt to obtain the identified records. All development efforts with respect to this directive should be associated with the claims file. The Veteran is encouraged to submit directly to VA any outstanding, relevant medical records in his possession. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected cervical spine, thoracolumbar spine, and bilateral shoulder disabilities. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran's service-connected cervical spine, thoracolumbar spine, and bilateral shoulder disabilities. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the cervical spine, thoracolumbar spine, and bilateral shoulder disabilities. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran's cervical spine, thoracolumbar spine and bilateral shoulder disabilities, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitation of knowledge in the medical community at large and not those of the particular examiner. 4. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether increased ratings and TDIU may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.