Citation Nr: 22015339 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 12-17 519 DATE: March 17, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent for intervertebral disc syndrome (IVDS) of the cervical spine for the period prior to November 22, 2019, is remanded. Entitlement to an initial rating in excess of 10 percent for temporomandibular joint syndrome (TMJ) for the period prior to November 22, 2019, is remanded. Entitlement to an initial rating in excess of 20 percent for TMJ for the period from November 22, 2019, onward is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded. REASONS FOR REMAND The Veteran served on active duty for training from May 1998 to July 1998. He served on active duty from October 2004 to December 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from February 2013 and January 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In an October 2017 decision, the Board, in pertinent part, denied entitlement to higher staged ratings for the service-connected cervical spine and TMJ disabilities. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2018, the Court granted an October 2018 Joint Motion for Partial Remand (JMPR) and vacated that portion of the Board's decision that denied higher staged ratings for the service-connected cervical spine and TMJ disabilities. The case was remanded back to the Board, and in October 2020, the Board again denied higher staged ratings for the service-connected cervical spine and TMJ disabilities. The Veteran appealed to the Court a second time, and in a May 2021 Order, the Court granted a May 2021 JMPR and vacated that portion of the Board's decision that denied an initial rating in excess of 10 percent for IVDS of the cervical spine for the period prior to November 22, 2019; and that portion of the Board's decision that denied an initial rating in excess of 10 percent for TMJ for the period prior to November 22, 2019; and in excess of 20 percent for TMJ from November 22, 2019, onward. The Board remanded the case in September 2021 for action consistent with the terms of the second JMPR. The matter now returns for further appellate review. Unfortunately, remand is warranted for additional medical inquiry into the claims for higher staged ratings for the service-connected IVDS of the cervical spine for the period prior to November 22, 2019; and for the service-connected TMJ disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of the appeal, in a May 2020 rating decision, the RO granted service connection for radiculopathy of the right upper extremity and assigned a 20 percent rating effective November 22, 2019. An appeal seeking an increased rating for a spine disability may include the issue of compensation for objective neurologic abnormalities related to the spine disability even if a Veteran does not file a separate claim or notice of disagreement as to the neurologic abnormalities. Chavis v. McDonough, 34 Vet. App. 1 (2021). Additionally, during the pendency of the appeal, a VA medical opinion was obtained in September 2021 to determine the impact, if any, of service-connected disabilities on the Veteran's employability. However, as the Veteran continues to be employed as an immigration officer, there is no evidence of occupational impairment due to service-connected disabilities. See December 2021 VA consultation note. Accordingly, the issue of entitlement to individual employability has not been raised and will not be discussed. 1. Entitlement to an initial rating in excess of 10 percent for IVDS of the cervical spine for the period prior to November 22, 2019, is remanded. 2. Entitlement to an initial rating in excess of 10 percent for TMJ for the period prior to November 22, 2019, is remanded. 3. Entitlement to an initial rating in excess of 20 percent for TMJ for the period from November 22, 2019, onward is remanded. Although the Board regrets the additional delay, further development is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (2011). IVDS of the Cervical Spine In regard to the Veteran's claim for a higher initial rating for IVDS of the cervical spine for the period prior to November 22, 2019, the parties agreed in the May 2021 JMPR that a new VA examination and opinion was necessary to clarify why the Veteran's report of increased neck pain would not constitute a flare-up, and to obtain a retrospective opinion to determine the degree of additional loss of motion after repetitive use testing and/or during flare-ups. Most recently, the Veteran underwent a VA examination in September 2021. At that examination, the VA examiner noted the Veteran's report of increased neck pain with worsening TMJ symptoms. The Veteran further reported that his neck pain is aggravated by lifting heavy things, anything over 15 pounds, and with turning his head to the right. The examiner, however, did not provide an estimate of functional loss in terms of range of motion concluding the Veteran had denied flare-ups. No further explanation was provided. Thus, the September 2021 VA examination report fails to state what the limitations of motion in degrees actually were without adequate explanation of why the Veteran's report of increased neck pain with worsening TMJ symptoms and/or after activities including lifting and turning his head would not constitute a flare-up. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). Accordingly, remand for a new VA examination and opinion is needed to fully address whether the Veteran's increased neck pain with worsening TMJ symptoms and/or after activities, including lifting and turning his head, constitutes a flare-up, and, if so, provide the current functional loss during any such flare-ups. TMJ Here, the Veteran was provided a September 2021 VA examination wherein the examiner noted the Veteran's report of popping and a sound of "rice-krispies" on his right TMJ, that was mild in severity, and contributes to pain. The examiner noted that pain significantly limits functional ability with repeated use over time, but failed to describe such in terms of range of motion finding that "after review of the Veteran's records including the order request, DBQ [disability benefits questionnaire], physical exam, reported history, and subjective complaints, relevant evidence of record, and using my medical knowledge and expertise, I have no basis to offer additional loss of function or motion with repeated use over time." The examiner, however, provided no explanation as to why she could not use the available information/evidence, to include the Veteran's lay statements of current and past experiences, in order to provide an estimate of his loss of motion and/or other functional loss with repeated use over time. See Sharp, 29 Vet. App. at 35-36. Additionally, while the September 2021 VA examination report indicates pain on passive range of motion and when used in non-weightbearing, the report only includes range of motion findings with regards to active motion. However, the Board notes that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weightbearing, and if possible, with range of motion measurements of the opposite undamaged joint. See Correia, 28 Vet. App. at 168-69. Accordingly, remand for a new VA examination and opinion is needed to address the current functional loss following repetitive use over time and/or during flare-ups. Retrospective Medical Opinions The retrospective opinions provided in a December 2021 addendum VA medical opinion for the Veteran's IVDS of the cervical spine and TMJ disabilities also do not comply with Sharp. For each opinion, the examiner merely concluded that "It is not possible to provide a retrospective opinion for the Veteran's additional degrees lost due to functional loss during flare up or after repeated use over time. No medical examiner would be able to provide this opinion without mere speculation as there is insufficient medical records." Such does not comply with Sharp which held that "it must be apparent that the inability to provide an opinion without resorting to speculation 'reflect[s] the limitation of knowledge in the medical community at large' and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner." Id. at 35-36. Here, the examiner provides no explanation as to why she could not use the available information/evidence, to include the Veteran's lay statements of current and past experiences, to provide an estimate of the Veteran's loss of motion and/or other functional loss during flare-ups and/or following repetitive use over time. Likewise, new retrospective medical opinions are required to determine: (a) the severity of the service-connected IVDS of the cervical spine for the period prior to November 22, 2019; and (b) the severity of the service-connected TMJ for the entire period on appeal. The retrospective opinions should also comply with the requirements of the holdings in Correia and Sharp. 4. Entitlement to an Initial Rating in Excess of 20 Percent for Radiculopathy of the Right Upper Extremity is Remanded. Further, there is evidence of record that indicates that the Veteran's right upper extremity radiculopathy may have occurred prior to November 22, 2019, which was also not discussed by the September 2021 VA examiner. While, the September 2021 VA examiner found no signs or symptoms of radiculopathy, the November 2019 VA examination report noted radiculopathy in the right upper extremity. Additionally, the earlier September 2016 VA examiner noted the Veteran's report of neck pain "radiating to the remainder of the head particular on the right side into the right postauricular region." Therefore, remand is necessary in order to obtain a medical examination and opinion to address the severity of the Veteran's radiculopathy of the right upper extremity and to determine whether the Veteran's radiculopathy of the right upper extremity manifested prior to the November 2019 VA examination. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, schedule the Veteran for a VA neck (cervical spine) examination by an appropriate clinician, by a VA examiner who has not previously examined the Veteran, if feasible, to determine the severity of his service-connected neck disability. The claims file must be made available to the examiner and all necessary testing should be conducted. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to his neck disability and discuss its effect on any occupational functioning and activities of daily living. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination of current and past experiences, state whether the Veteran experiences flare-ups of his service-connected neck disability, and how he characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare-ups, identify the: a. frequency; b. duration; c. precipitating factors; and d. alleviating factors. The examiner must address whether the Veteran's report of increased neck pain with worsening TMJ symptoms and/or after activities including lifting and turning his head would constitute a flare-up. Retrospective opinion: The examiner is to provide a retrospective opinion, as best as can be ascertained from the Veteran's self-report of current and past experiences, as well as from clinical records and other evidence, for the April 2012 and September 2016 VA examinations. For these examinations, the examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and/or after repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and/or following repetitive use over time based on the other evidence of record, to include the Veteran's lay statements of current and past experiences. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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). Also, the examiner must assess the current severity of any neurological impairment associated with the Veteran's service-connected cervical spine disability, to include radiculopathy of the right upper extremity. The examiner is also asked to opine whether it is medically possible to determine whether the Veteran's radiculopathy of the right upper extremity manifested prior to November 22, 2019. For all cervical spine opinions: A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. 3. Also, schedule the Veteran for a temporomandibular disorder examination by an appropriate clinician, by a VA examiner who has not previously examined the Veteran, if feasible, to determine the severity of his service-connected TMJ disability. The claims file must be made available to the examiner and all necessary testing should be conducted. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to his TMJ disability and discuss its effect on any occupational functioning and activities of daily living. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination of current and past experiences, state whether the Veteran experiences flare-ups of his service-connected TMJ disability, and how he characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare-ups, identify the: a. frequency; b. duration; c. precipitating factors; and d. alleviating factors. Retrospective opinion: The examiner is to provide a retrospective opinion, as best as can be ascertained from the Veteran's self-report of current and past experiences, as well as from clinical records and other evidence, for the April 2012, October 2016, and November 2019 VA examinations. For these examinations, the examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and/or after repeated use over time. If it is not possible to provide a specific measurement 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, to include the Veteran's lay statements of current and past experiences. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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). For all TMJ opinions: A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.