Citation Nr: 22035698 Decision Date: 06/21/22 Archive Date: 06/21/22 DOCKET NO. 17-64 494 DATE: June 21, 2022 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a left upper extremity neurological disability is remanded. Entitlement to service connection for a right upper extremity neurological disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative arthritis is remanded. Entitlement to an effective date earlier than September 14, 2017, for the award of service connection for left lower extremity radiculopathy is remanded. Entitlement to an effective date earlier than September 14, 2017, for the award of service connection for right lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is remanded. INTRODUCTION The Veteran served on active duty in the United States Air Force from May 1974 to May 1978. When this case was previously before the Board in May 2019, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND For numerous reasons, the Board finds further development is required before the claims on appeal can be decided. Missing Records Initially, the Board notes that by way of a July 2019 correspondence, the RO requested the Veteran's records from the Social Security Administration (SSA). However, the record contains neither a response from the SSA nor the Veteran's records from that agency. As such, additional development to obtain those records is necessary. See 38 C.F.R. § 3.159 (c)(2). Service Connection Claims Next, the Board notes the Veteran underwent VA examinations to assess his claimed neck, shoulder, and bilateral upper extremity neurological disorders in February 2020. Following those examinations, the Veteran was diagnosed with cervical spine degenerative disc disease with spondylosis, right shoulder degenerative joint disease, and bilateral upper extremity radiculopathy and carpal tunnel syndrome. The examiner failed to perform an examination or provide the requested opinions with respect to the Veteran's left shoulder disability. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The examiner did find the Veteran's bilateral upper extremity radiculopathy was consequentially related to his cervical spine disability. However, the examiner found the Veteran's cervical spine and right shoulder disabilities were neither incurred in service nor caused by his service-connected lumbar spine disability. Though the examiner acknowledged the Veteran's treatment for injuries in service, as well as his post-service medical treatment, he wholly failed to acknowledge or discuss the Veteran's reports of ongoing neck and shoulder pain. Examiners simply are not free to ignore a veteran's statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the examiner indicated there was no evidence the Veteran's cervical spine was "permanently worsened" by his lumbar spine disability. The U.S. Court of Appeals for Veterans Claims (Court) has held aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Additionally, the examiner failed to provide an opinion as to secondary aggravation with respect to the Veteran's right shoulder disability. Based on the foregoing, the Board finds new examinations and medical opinions are necessary. Increased Rating Claim In the course of the May 2019 remand, the Board fully explained that an assessment of the Veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion were necessary to properly evaluate the Veteran's lumbar spine disability. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran underwent a VA back examination in February 2020; however, like the prior examinations, the examiner, failed to provide these critical evaluative criteria. In particular, the examiner found the Veteran does experience painful flare-ups, but did not discuss all required procurable data with respect to the Veteran's flare-ups. Further, the examiner wholly ignored the May 2019 instructions to provide range of motion measurements in weight bearing, non-weight bearing, and in passive motion. As such, a remand is again required with respect to the Veteran's lumbar spine appeal. The Board also notes the Veteran's claim for service connection for sleep impairments is intrinsically intertwined with his lumbar spine disability. In particular, the Veteran has asserted he experiences difficulty sleeping as a result of his service-connected lower back and bilateral lower extremity disabilities. In the course of the pending examination, the examiner should comment on whether the Veteran's sleep impairments are a manifestation of his low back pain. Earlier Effective Date Claims By way of a May 2020 correspondence, the Veteran's representative asserted the Veteran's bilateral lower extremity radiculopathy warranted a diagnosis prior to his September 2017 VA examination, based on all evidence of record. Since a determination as to when a disability first manifest is a question that requires an expert medical assessment, the Board finds a retrospective medical opinion would be helpful to properly consider the Veteran's claims for entitlement to earlier effective dates. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). TDIU Claim Finally, the Board notes that to date the RO has not obtained a comprehensive medical opinion addressing the functional impairments caused by the Veteran's service-connected disabilities in concert. This frustrates consideration of the Veteran's claim for entitlement to a TDIU rating. Based on the foregoing insufficiencies, the Board finds a remand is required. Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to specifically include his missing Social Security Administration Records. If any requested records are deemed unavailable, a formal finding of unavailability should be drafted for the record and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Also afford the Veteran a VA examination by an Orthopedic Specialist with sufficient expertise, who has not previously examined the Veteran, to determine the nature and etiology of the Veteran's claimed cervical spine and bilateral shoulder disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. Based on a review of the evidence of record, lay statements, and examination results, the examiner should opine as to whether the Veteran's cervical spine disability, left shoulder disability, or right shoulder disability at least as likely as not (a 50 percent probability or greater): a) was incurred in service or is otherwise etiologically related to the Veteran's active service; b) is proximately due to his service-connected lumbar spine disability; or c) was aggravated to any degree by his service-connected lumbar spine disability. For these opinions, the examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including events and symptoms. The examiner is asked to consider and expressly discuss the Veteran's reports relative to the etiology of the claimed disabilities. If the examiner finds any reports provided by the Veteran to lack reliability, the examiner should state why. Additionally, the examiner is asked to consider and expressly discuss the Veteran's documented left collarbone fracture in April 1975, September 1976 in-service motorcycle accident, and extensive work on aircraft as a mechanic during service. The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case and state whether the inability to provide the required opinions is based on a lack of knowledge among the medical community at large. 3. The Veteran should also be provided a VA examination by an Orthopedic Specialist with sufficient expertise to fully assess the severity of the Veteran's service-connected lumbar spine disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the Veteran's flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. The examiner is further asked to state whether the Veteran's reported sleep impairments are at least as likely as not (a 50 percent probability or greater) caused or aggravated by his lumbar spine disability, to include pain resulting therefrom. Further, the examiner is asked to review the Veteran's complete file, and provide a retrospective opinion, if possible, as to when the Veteran's bilateral lower extremity radiculopathy first manifest. The examiner is asked to provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case and state whether the inability to provide the required opinions is based on a lack of knowledge among the medical community at large. 4. Finally, obtain from a VA examiner with sufficient expertise, a retrospective assessment of the functional impact of the Veteran's service-connected disabilities on his employability. Specifically, the examiner should comment on how the Veteran's service-connected disabilities, both singularly and in concert, have affected his ability to obtain and maintain any form of substantially gainful employment consistent with his education and occupational background throughout the pendency of this appeal. In this regard, the examiner should provide concrete examples of functional impairments caused by the Veteran's service-connected disabilities. Such impairments include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. This assessment should include any impairments caused by the Veteran's medications taken to treat his service-connected disabilities. An estimation in measurements such as time and distance, with respect to standing, sitting, or walking limitations would be of great assistance. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.