Citation Nr: 1600031 Decision Date: 01/04/16 Archive Date: 01/12/16 DOCKET NO. 11-08 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a headache disability. 2. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine (low back disability). 3. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease (right knee disability). 4. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease (left knee disability). 5. Entitlement to a rating in excess of 10 percent for left ankle strain (left ankle disability). 6. Entitlement to a rating in excess of 10 percent for right ankle strain (right ankle disability). 7. The propriety of the reduction in the rating for right ankle disability from 20 percent to 10 percent, effective June 1, 2011. 8. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Reddington INTRODUCTION The Veteran served on active duty from June 1986 to June 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2010 and August 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for headaches, continued 10 percent ratings for a left knee disability, a left ankle disability, and a right knee disability, continued a 20 percent rating for a low back disability, and proposed to reduce the rating for a right ankle disability from 20 to 0 percent. A March 2011 rating decision implemented the reduction (however only to 10 percent), effective June 1, 2011. In October 2015, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the record. During the hearing, the undersigned granted the Veteran's request for an abeyance of 30 days to submit additional medical records. In response, the Veteran submitted additional records in October 2015 (a waiver of initial RO review was given at the hearing). The appeal is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND Initially, the Board notes that a review of the record reflects that the Veteran is receiving Social Security Administration (SSA) disability benefits. Although a disability determination and decision are of record, medical records in connection with this claim are not. As medical records pertaining to the award of such benefits are constructively of record, and as they may contain pertinent information regarding the claims on appeal, attempts to secure them must be made. Additionally, the Veteran claims that he has headaches due to motor vehicle accidents in service (and specifically an accident when his head went through the windshield) or alternatively due to medications he takes for his service-connected disabilities. His service treatment records reflect that he was involved in motor vehicle accidents in service in February and August 1987 and that he sustained multiple contusions to his forehead in the February 1987 wreck. Postservice treatment records note complaints of headaches, head pain as a side effect of meloxicam, allopurinol, and Lisinopril, and sinus headaches. On August 2014 VA headaches examination, the examiner did not note a diagnosis of a headache disability. The examiner indicated that the Veteran's reports are merely complaints, and do not represent a diagnosis. The examiner then opined that the Veteran's service treatment records reveal no loss of consciousness with the accident and no basis to relate headaches. The examiner noted that the Veteran relates migraine headaches to taking a full dose of allopurinol. The Board finds that this opinion is inadequate. Notably, the opinion does not include an adequate rationale for why the Veteran's headaches (of which he is competent to report) are unrelated to his service and specifically being involved in motor vehicle accidents therein. And although the examiner notes that the service treatment records do not reflect a loss of consciousness, the examiner fails to discuss that the Veteran was shown to have sustained multiple lacerations to his forehead after the February 1987 accident. Further, this opinion does not address whether the Veteran's headaches are secondary to the medications he takes for his service-connected disabilities. Accordingly, additional development is required. Regarding the matters of increased ratings for the low back, left knee, right knee, left ankle, and right ankle disabilities, the Veteran testified that these disabilities have worsened. As to his back disability, he indicated that he can no longer stand up from a sitting position without help and that when his back goes out, he is in bed for one to one and a half weeks. He also stated that at times his back pain is so severe, he will throw up. An April 2014 lumbar spine MRI notes that the Veteran's disc disease has increased. As to his bilateral knee and ankle disabilities, the Veteran testified that he has flare-ups, swelling, and pain and that he has fallen a couple of times. He stated that these disabilities have worsened and that he would be willing to report for an examination to verify the increase in symptomatology. The Veteran was last examined by VA to assess the severity of his back in September 2012 and was last examined by VA to assess the severity of his knees and ankles in August 2014. It is not inconceivable that during this interim period, the Veteran's disabilities have increased in severity. Accordingly, the Board finds that updated examinations are warranted to assess the current severity and associated functional impairment caused his back, knee, and ankle disabilities. Regarding the matter of the propriety of the reduction for the right ankle disability from 20 percent to 10 percent, a March 2011 rating decision implemented the proposed reduction in the right ankle disability rating from 20 to 10 percent, effective June 1, 2011. Correspondence from the Veteran received later that month reasonably expresses disagreement with the reduction. The AOJ has not issued a statement of the case (SOC) as to the propriety of the reduction (but instead issued a SOC regarding whether a higher rating for right ankle disability was warranted). In such circumstances the Board is required to remand the matter for issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). This matter is not now before the Board, and will only be before the Board if the Veteran timely files a substantive appeal after a SOC is issued. Finally, the issue of the propriety of the reduction for the right ankle disability is inextricably intertwined with the claim seeking an increased rating for a right ankle disability. Thus, adjudication of this appeal must be deferred pending resolution of the propriety of the reduction claim. Additionally, the issue of a TDIU rating is inextricably intertwined with the claims seeking increased ratings being remanded herein. Accordingly, adjudication of this matter must be deferred pending resolution of the increased ratings claims. Accordingly, the case is REMANDED for the following actions: 1. Secure for the record from SSA copies of all medical records considered in connection with the Veteran's award of SSA disability benefits. If any such records are unavailable, the reason for their unavailability must be noted in the record, and the Veteran should be so advised. 2. Obtain any and all updated or outstanding VA and/or private treatment records relevant to the disabilities on appeal. 3. Then, arrange for a supplementary medical opinion (with an examination only if deemed necessary by the opinion provider) by an appropriate provider to determine the likely etiology of the Veteran's headache disability. The Veteran's entire record must be reviewed by the opinion provider. Following review of the record, the opinion provider should respond to the following: (a) Is it at least as likely as not (a 50% or greater probability) that the Veteran has a headache disability incurred in or due to his military service, to include due to being involved in motor vehicle accidents therein? (b) If the Veteran's headache disability is found to not be directly related to his service, is it at least as likely as not (a 50% or greater probability) that it was caused or aggravated by his service-connected disabilities, to include the medications he takes for such disabilities? The opinion provider is advised that the Veteran is service-connected for: lumbar spine degenerative joint disease (DJD), right knee DJD, left knee DJD, left ankle strain, right ankle strain, residuals of a fractured left rib, and bilateral cataracts. The opinion provider must explain the rationale for all opinions. 4. Then, schedule the Veteran for appropriate examinations regarding his low back, bilateral knee, and bilateral ankle disabilities. The examiner(s) should discuss the current severity of these disabilities and address the functional limitations caused by them. The record, to include this remand, must be made available to and reviewed by the examiner(s). In proffering an opinion regarding the functional impairment caused by the Veteran's low back/bilateral knee/bilateral ankle disabilities, the examiner(s) should consider and discuss as necessary that the Veteran has reported that he last worked at Walmart in 2005 and that he is unable to work now due to his service-connected disabilities. He indicated he graduated high school and has some college education. The examiner(s) must explain the rationale for all opinions. 5. Regarding the matter of the propriety of the reduction for right ankle disability, review the determination and if it remains denied, issue an appropriate SOC in the matter. The Veteran and his representative should be advised of the time limit for perfecting the appeal, and afforded the opportunity to do so. If this occurs, the matter should be returned to the Board for appellate review. 6. Then review the record and readjudicate the claims remaining on appeal. If any remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).