Citation Nr: 24011237 Decision Date: 03/08/24 Archive Date: 03/08/24 DOCKET NO. 96-45 633 DATE: March 8, 2024 REMANDED Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for left elbow arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for right elbow arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for left hip arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for right hip arthritis is remanded. Entitlement to a compensable rating prior to September 27, 2002 for left shoulder arthritis is remanded. Entitlement to a rating in excess of 20 percent prior to September 27, 2002 for right shoulder bursitis with arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for left wrist arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for right wrist arthritis is remanded. Entitlement to a compensable rating prior to September 27, 2002 for left knee arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for right knee arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for left ankle arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for right ankle arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for arthritis of the bilateral hands is remanded. Entitlement to a rating in excess of 40 percent for cervical spine arthritis is remanded. Entitlement to a rating in excess of 20 percent for lumbosacral spine arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1966 to July 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 1996 and November 2002 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 1992, the Veteran filed a claim for service connection for a cervical spine disability, as well as traumatic arthritis in all joints. In February 1996, the agency of original jurisdiction (AOJ) denied the claim for service connection for a cervical spine disability. The Veteran filed a notice of disagreement (NOD) in March 1996, after which the AOJ issued a May 1996 statement of the case (SOC). The Veteran perfected the claim for service connection for a cervical spine disability by way of a May 1996 VA Form 9, and the Board denied the claim in a January 1999 decision. The Veteran appealed the January 1999 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2001, the Court vacated the January 1999 Board decision and remanded the case for additional development in accordance with a Joint Motion for Remand (JMR) which noted the AOJ's failure to adjudicate the Veteran's claim for traumatic arthritis in all joints in an SOC. The Board completed a remand in July 2001 in accordance with the instructions of the JMR. In November 2002, the AOJ issued a decision addressing the claim for service connection for traumatic arthritis in all joints. In December 2003, the Veteran filed a NOD regarding all ratings and effective dates assigned for traumatic arthritis of the joint at issue in the November 2002 decision, after which the AOJ issued a June 2004 SOC. The Veteran perfected an appeal to this decision, as well as a separate claim related to residuals of Agent Orange exposure, in August 2004. The Board remanded the case in November 2005 and adjudicated multiple increased rating and earlier effective date claims in December 2008. The Veteran filed an appeal with respect to the December 2008 Board decision to the Court, and the Court in May 2010 vacated and remanded all of the increased rating and earlier effective date claims adjudicated in the December 2008 Board decision for action in accordance with a JMR. The Veteran abandoned the appeal of the Agent Orange residuals claim at that time. In December 2010, the Board decided each of the effective date claims on appeal and remanded the increased rating claims for new and adequate VA examinations. The Board in January 2013 and August 2017 again remanded the increased rating claims then on appeal for development of the record, to include VA and private treatment records and updated VA examinations. In November 2018, the Board dismissed the claims for increased ratings for the service connected arthritis of the following joints for the period beginning September 27, 2002: bilateral shoulders, bilateral hands, bilateral elbows, bilateral hips, bilateral knees, bilateral ankles, and left wrist. Such was done per the Veteran's request to withdraw his appeal for higher ratings for these disabilities from September 27, 2002 (at which point the Veteran was in receipt of a combined 100 percent rating). The Board at that time, in part, remanded the matters of entitlement to increased ratings for traumatic arthritis of the following joints for the period prior to September 27, 2002: bilateral shoulders, bilateral elbows, bilateral knees, bilateral hips, bilateral ankles and bilateral hands. The Board also in November 2018 remanded claims for increased ratings for arthritis of the cervical spine, arthritis of the lumbosacral spine, and radiculopathy of the right upper extremity. Thereafter, the Board issued a July 2021 remand wherein it remanded the matters of entitlement to increased ratings for traumatic arthritis of the following joints for the period prior to September 27, 2002: bilateral shoulders, bilateral elbows, bilateral knees, bilateral hips, bilateral ankles and bilateral hands. The Board also in November 2018 remanded claims for increased ratings for arthritis of the cervical spine, arthritis of the lumbosacral spine, and radiculopathy of the left and right upper extremity. Subsequently, in October 2022, the Board denied entitlement to higher ratings for traumatic arthritis of the following joints for the period prior to September 27, 2002: bilateral shoulders, bilateral elbows, bilateral wrists, bilateral knees, bilateral hips, bilateral ankles, and bilateral hands. In the October 2022 decision, the Board restored the Veteran's 40 percent cervical spine arthritis rating and denied higher ratings for the Veteran's cervical spine and lumbosacral spine arthritis. The Board also remanded claims for increased ratings for radiculopathy of the left and right upper extremity. The Veteran appealed the matters denied in the Board's October 2022 decision to the Court. In a November 2023 order, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the portion of the Board's October 2022 decision that denied entitlement to higher ratings for traumatic arthritis of the following joints for the period prior to September 27, 2002: bilateral shoulders, bilateral elbows, bilateral wrists, bilateral knees, bilateral hips, bilateral ankles and bilateral hands. The Court also vacated the portion of the decision that denied entitlement to higher ratings for the Veteran's cervical spine and lumbosacral spine arthritis. The matters are again before the Board and must be remanded for further development consistent with the Court's November 2023 JMPR. 1. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for left elbow arthritis is remanded. 2. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for right elbow arthritis is remanded. 3. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for left hip arthritis is remanded. 4. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for right hip arthritis is remanded. 5. Entitlement to a compensable rating prior to September 27, 2002 for left shoulder arthritis is remanded. 6. Entitlement to a rating in excess of 20 percent prior to September 27, 2002 for right shoulder bursitis with arthritis is remanded. 7. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for left wrist arthritis is remanded. 8. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for right wrist arthritis is remanded. 9. Entitlement to a compensable rating prior to September 27, 2002 for left knee arthritis is remanded. 10. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for right knee arthritis is remanded. 11. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for left ankle arthritis is remanded. 12. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for right ankle arthritis is remanded. 13. Entitlement to a rating in excess of 10 percent prior to September 27, 2002 for arthritis of the bilateral hands is remanded. 14. Entitlement to a rating in excess of 40 percent for cervical spine arthritis is remanded. 15. Entitlement to a rating in excess of 20 percent for lumbosacral spine arthritis is remanded. Per the Court's November 2023 JMPR, a remand is required to obtain a VA medical opinion that substantially complies with the July 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As such, the claims are remanded to obtain a retrospective medical opinion in which the reviewing clinician sufficiently addresses the Veteran's arthritis prior to September 27, 2002 in accordance with the July 2021 Board remand directives for his bilateral elbows, bilateral hips, bilateral shoulders, bilateral wrists, bilateral knees, bilateral ankles, bilateral hands, cervical spine, and lumbosacral spine. The matters are REMANDED for the following action: Obtain medical opinions from a qualified clinician for the Veteran's bilateral elbow, bilateral hip, bilateral shoulder, bilateral wrist, bilateral knee, bilateral ankle, bilateral ankle, cervical spine, and lumbosacral spine disabilities for the period prior September 27, 2002. The electronic claims file must be made available to the clinician for review in connection with the request for opinions. Provide the reviewing clinician with the rating criteria effective prior to September 23, 2002 and from September 23, 2002 to September 25, 2003 for the lumbar spine and cervical spine. After reviewing the claims file, including, but not limited to, the evidence laid out in the Veteran's attorney's April 3, 2017 (receipt date of April 4, 2017) and January 31, 2022 written statements and the Court's November 2023 JMPR, the reviewing clinician should address the following: (a.) Provide a full description of EACH disability and report all signs and symptoms necessary for evaluating EACH disability prior to September 27, 2002, pursuant to the rating criteria effective during this time period. If it is not feasible to provide a description of EACH of the Veteran's disabilities for the period prior to September 27, 2002 without resorting speculation, the reviewing clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the reviewing clinician does not have the knowledge or training. The lack of opportunity to observe the Veteran during the period on appeal prior to September 27, 2002 is an insufficient basis for addressing the nature and severity of the Veteran's disabilities prior to September 27, 2002. (b.) For the period prior to September 27, 2002, the reviewing clinician should determine whether EACH disability resulted in pain, weakness, fatigue, lack of endurance, incoordination, or any other symptom resulting in functional loss after repeated use over time and during flare-ups. If feasible, the clinician must assess the additional functional impairment on repeated use over time and during flare-ups in terms of the degree of additional range of motion loss, based on the medical and lay evidence of record. If it is not feasible to provide specific measurements, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the reviewing clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the reviewing clinician does not have the knowledge or training. The lack of opportunity to observe the Veteran during the period on appeal prior to September 27, 2002 is an insufficient basis for not estimating the functional effects in terms of degrees of range of motion. (c.) For the period prior to September 27, 2002, the reviewing clinician should describe the effects of EACH of the Veteran's joint disabilities on his occupational functioning and daily activities with and without the use of pain medication. If it is not feasible to provide the opinion regarding functional impairment without speculation, the reviewing clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the reviewing clinician does not have the knowledge or training. The lack of opportunity to observe the Veteran during the period on appeal prior to September 27, 2002 is an insufficient basis for not describing the functional effects of the Veteran's disabilities on his occupational functioning and daily activities with and without the use of pain medication. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.