Citation Nr: 22017318 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 19-24 122 DATE: March 24, 2022 REMANDED Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis of the spine (back) is remanded. Entitlement to an initial evaluation in excess of 20 percent for glenohumeral joint dislocation, right is remanded. Entitlement to an initial evaluation in excess of 20 percent for glenohumeral joint dislocation, left is remanded. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity, sciatic nerve is remanded. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity, sciatic nerve is remanded. Entitlement to service connection for a right eye condition is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1984 to September 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is associated with the electric claims file. 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis of the spine is remanded. The Veteran contends that his degenerative arthritis of the spine warrants a rating in excess of 10 percent due to limited range of motion. At the August 2021 Board hearing, the Veteran relates that he has experienced pain since the October 2017 VA examination. He alleges he has days when he is bedridden and his back is ankylosed at times. As the evidence of record suggests a material change in the Veteran's service-connected degenerative arthritis of the spine since his October 2017 VA examination, the Board finds that the Veteran should be afforded a new VA examination to assess the current severity of his low back disability. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007) (when a veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month-old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected degenerative arthritis of the spine. 2. Entitlement to an initial evaluation in excess of 20 percent for glenohumeral joint dislocation, right is remanded. 3. Entitlement to an initial evaluation in excess of 20 percent for glenohumeral joint dislocation, left is remanded. The Veteran contends that his bilateral shoulder disabilities warrant a rating in excess of 20 percent due to limited range of motion and ability to carry weight. While the record contains an October 2017 VA examination regarding the Veteran's biltaral shoulder disabilities, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements. Therefore, remand is necessary to obtain a new VA examination which complies with the requirements of Correia. 4. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity, sciatic nerve is remanded. 5. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity, sciatic nerve is remanded. The Veteran contends that an increased evaluation in excess of 10 percent is warranted for his service-connected radiculopathy of the bilateral lower extremities due to pain and limited mobility. At the August 2021 Board hearing, the Veteran relates that his radiculopathy of the bilateral lower extremities causes him intense pain, limiting his movement and ability to function or walk. As the evidence of record suggests a material change in the Veteran's service-connected radiculopathy of the bilateral lower extremities since the October 2017 VA back examination, the Board finds that the Veteran should be afforded a new VA examination to assess the current severity of his disabilities. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007) (when a veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month-old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected radiculopathy of the bilateral lower extremities. 6. Entitlement to service connection for a right eye condition is remanded. The Veteran contends that his right eye condition first manifested during service and has continued since service. During an August 2021 hearing, the Veteran identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142/21-4142a for Landstuhl Medical Center. Make two requests for the authorized records from Landstuhl Medical Center, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected lumbar spine disability. The Veteran's claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees). (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the back cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] 3. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected bilateral shoulder disabilities. The Veteran's claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees). (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the shoulder cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] 4. Schedule the Veteran for a peripheral nerves examination by an appropriate clinician to determine the current severity of his service-connected radiculopathy of the bilateral lower extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.