13-21 754
13-21 754
| Board of Vet. App. | Sep 30, 2016Background
- Veteran served July–Aug 1989 and Mar 1992–Jun 2010 and was granted service connection for lumbar degenerative disc disease (L5-S1) and bilateral shoulder degenerative arthritis with initial ratings of 20% (back) and 10% each (shoulders) from June 24, 2010.
- A temporary total disability rating for the lumbar spine under 38 C.F.R. § 4.30 was awarded from May 13, 2011 to June 30, 2011; the Veteran contends it should extend beyond July 1, 2011.
- The Board previously remanded increased-rating claims for the back and shoulders and related issues; the file contains surgeries (May 2011 lumbar surgery; May 2013 right shoulder surgery) and prior VA exams (Dec 2010, Jan & Jul 2011).
- VA examinations from Apr 2016 failed to comply with Correia requirements (active/passive and weight-bearing/nonweight-bearing ROM testing and comparison where possible), and the Board ordered new examinations to measure active and passive ROM, flare-ups, and estimations of prior passive ROM.
- The Board also found additional development needed: obtain Triangle Orthopedics records (2002–Mar 2011 and since May 2011), request VA Form 21-8940 for TDIU, and obtain a VA vocational assessment addressing the combined impact of service-connected conditions on employability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Higher initial rating for L5-S1 degenerative disc disease | Back disability is more severe and temporary total rating under § 4.30 should extend beyond Jul 1, 2011 | RO maintained prior ratings and limited § 4.30 period; development incomplete | Remanded for new VA spine exam per Correia, obtain records, and further development on § 4.30 extension (deferred, intertwined with increased rating claim) |
| Higher initial rating for left shoulder degenerative arthritis | Left shoulder warrants >10% based on functional loss and ROM | RO relied on prior ratings and inadequate exam evidence | Remanded for new shoulder exam measuring active/passive and weight/nonweight bearing ROM and flare-up loss estimates |
| Higher initial rating for right shoulder degenerative arthritis | Right shoulder warrants >10% based on functional loss and prior surgery | RO relied on prior ratings and inadequate exam evidence | Remanded for new right shoulder exam with Correia-compliant testing and estimations of prior passive ROM |
| Entitlement to TDIU | Veteran unable to secure any work post-discharge; vocational limitations from service-connected conditions warrant TDIU | No completed 21-8940 or sufficient vocational/medical development to grant TDIU | Remanded: request 21-8940, obtain medical records, and obtain vocational assessment; consider TDIU in SSOC if denied |
Key Cases Cited
- Correia v. McDonald, 28 Vet. App. 158 (2016) (VA joint exams must, wherever possible, include active and passive ROM and weight-bearing and nonweight-bearing testing)
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU can be part of an initial rating claim when raised by the record)
- Manlincon v. West, 12 Vet. App. 238 (1999) (procedural requirement for statement of the case after a timely NOD)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant may submit additional evidence after remand; remands are mandatory development orders)