Citation Nr: 1302880 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 94-05 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left knee disability, to include consideration of both direct and secondary bases. 2. Entitlement to service connection for a left hip disability, to include consideration of a secondary basis only. 3. Entitlement to an initial evaluation in excess of 20 percent for residuals of injury to the left forearm. 4. Entitlement to a finding of total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney-At-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from October 1961 to August 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 1992 rating decision by the Atlanta, Georgia, Regional Office (RO) and May 1994, June 2000, and May 2010 rating decisions by the Winston-Salem, North Carolina RO of the United States Department of Veterans Affairs (VA). The July 1992 rating decision granted service connection for residuals of a left forearm disability and assigned a 10 percent evaluation, effective February 6, 1992. The Veteran perfected an appeal regarding the evaluation. In May 1994, the RO awarded an increased 20 percent evaluation for the left forearm injury, effective February 6, 1992. The May 1994 rating decision also denied service connection for a left knee disability. In June 2000, service connection for a left hip disability was denied. Entitlement to TDIU was denied in a May 2010 decision. The Veteran testified at a June 1999 hearing, held at the Board's Washington, DC, offices before a Veterans Law Judge. In a December 1999 decision, the Board in pertinent part remanded the left knee and left forearm matters for further development. When the case was returned to the Board, the Veteran was informed in February 2003 correspondence that the Veterans Law Judge who had presided over his hearing was no longer employed by the Board. The Veteran opted for a second hearing, and the claims with regard to the left knee, left hip, and left forearm were remanded for such. A personal hearing was held before the undersigned via videoconference from the RO in June 2003. In a subsequent December 2003 decision, the Board again remanded the appeals for further development. In June 2006, the Board again considered the claims, and denied service connection for left knee and hip disabilities and an increased evaluation for the left forearm disability. The Veteran appealed the Board's June 2006 decision to the Court of Appeals for Veterans Claims (Court or CAVC), which in a March 2009 memorandum decision affirmed the denial of service connection for a left hip disability on a direct basis. The Court remanded the question of entitlement to secondary service connection for the left hip disability. The Court additionally vacated and remanded the decisions with respect to service connection for the left knee disability and evaluation of the left forearm disability. Although the Court additionally indicated that the issue of entitlement to TDIU was also remanded, that matter was actually not before the Court. TDIU had been denied in an unappealed March 2004 rating decision. In an October 2009 decision, the Board therefore referred a newly raised claim of TDIU to the RO for appropriate action, which resulted in the May 2010 decision currently under appeal on that issue. The October 2009 Board decision also remanded the claims with regard to the left knee, left hip and left forearm. In May 2012, the Board again remanded the claims for additional development. The matters are now returned to the Board for further appellate consideration. No other issue remains on appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Though the Board regrets the additional delay, further remand is required to secure a complete and accurate record upon which to render a decision. Left Knee and Hip In May 2012, the Board remanded the claims of service connection for left knee and left hip disabilities for provision of a VA examination and obtention of a reasoned medical opinion on the etiology of any current conditions. An earlier, March 2010 examination, with an October 2010 addendum, was not adequate for adjudication purposes because the examiner had not addressed the possibility that service-connected bilateral heel disabilities have aggravated, as opposed to directly causing, the claimed left knee and hip disabilities. Further, the rationale offered by the examiner for his opinions was not adequate. He was unfortunately not able to review the claims file in its entirety until many months after the physical examination, and so did not have the opportunity to consider the extended history of the Veteran's complaints. On remand, a new and very extensive VA examination was afforded the Veteran with a new examiner. The examiner stated she was able to review the claims file, and she offered the requested nexus opinions with supporting rationale. Unfortunately, in setting forth her rationale, the examiner relied upon incorrect facts, and hence her opinion has no probative value. Reonal v. Brown, 5 Vet. App. 458, 460 (1993). She opined that current left knee and hip conditions were not likely related to service-connected disabilities, specifically left and right heel fractures. Her reasoning included the finding that there had been no right heel fracture. However, the Veteran is in fact service connected for a right heel fracture, and despite the examiner's apparent professional disagreement with that, she still must accept the fact of a right heel injury in the in-service fall. Because she considered only part of the service-connected disabilities in rendering her opinion, the opinion is not adequate. Remand is required to obtain an adequate opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, the current VA examiner found the left hip to be normal. A March 2010 VA examiner found a left hip strain, and noted some functional impairment. On examination, an opinion as to whether there is any current chronic left hip disability is necessary. Left Forearm The May 2012 Remand directed that neurological, hand, and joints examinations be performed to ensure that all current manifestations of the service-connected left forearm disability were properly identified. A March 2010 VA examination had indicated the presence of a fairly extensive restriction of left elbow movement as part of the forearm disability, and this raised the possibility of evaluation under alternative Diagnostic Codes in the Rating Schedule. The required examinations were conducted in June 2012; the examiner made extensive clinical findings regarding the left forearm, the left elbow, the left wrist, and the left hand. At that examination, no limitation of left elbow function was noted; there was some slight impairment of left wrist movement following repetitive motion testing. An x-ray did show mild degenerative changes of the left wrist. Given the vastly differing findings between the March 2010 and June 2012 examinations, a remand for examination to attempt some reconciliation is required. A clear statement on whether there is any current disability of the elbow or wrist is required, to include an explanation, if possible, for the varied findings. Finally, the May 2012 Remand specifically directed that possible application of an extraschedular evaluation under 38 C.F.R. § 3.321 be considered. The June 2012 supplemental statement of the case failed to do so. On remand, this must be accomplished. TDIU Entitlement to TDIU is dependent upon a determination of the impact of service connected disabilities upon the Veteran's ability to obtain or retain substantially gainful employment. TDIU therefore remains inextricably intertwined with the still-pending claims for increased evaluation and service connection. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Adjudication of TDIU entitlement must be deferred until the other issues are addressed. In May 2012, the Board directed that the Veteran be afforded the opportunity to submit an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which contains information important to a claim for TDIU. Such was not done, and should be done on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain complete, updated VA treatment records from VAMC Durham and VAMC Salisbury, and from all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period of May 2012 to the present. If such records are unavailable, or are associated with the file through the Virtual VA electronic system, such should be noted in the claims file. 2. Contact the Veteran and request an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. Schedule the Veteran for a VA Joints examination. The claims folder must be reviewed in conjunction with the examination, as well as copies of this and the May 2012 Board remands. a) The examiner must identify all current diagnoses and disabilities of the left knee and left hip. The examiner must opine as to whether it is at least as likely as not any such conditions are caused or aggravated by service-connected bilateral heel disabilities. The examiner must consider that the Veteran did injure both heels in service, and is service-connected for such. In this context, aggravated means worsened beyond the natural progression of the disease. With regard to the hip, the examiner should specifically address the March 2010 VA examination findings of a current disability, and state whether such represented a chronic or an acute condition. b) The examiner must identify all current diagnoses and disabilities of the left elbow and left wrist. The examiner must opine as to whether any such condition is at least as likely as not related to (part of, caused by, or aggravated by) the service connected left forearm injury. The examiner must fully describe the extent of any left elbow impairment, to include measured ranges of motion. The examiner must specifically comment on the March 2010, May 2012, and current clinical findings; variation in the measured functional limitations of any joint should be explained to the greatest extent possible. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered 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). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. The AMC/RO should specifically consider whether referral for consideration of an extraschedular rating for the residuals of the left forearm is warranted under 38 C.F.R. § 3.321(b). If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).