Citation Nr: 1633744 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 06-25 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for lumbar degenerative disc disease, including as secondary to the service-connected bilateral pes planus and/or knee disabilities. 2. Entitlement to a rating in excess of 10 percent prior to December 15, 2015, and in excess of 30 percent from December 15, 2015 for service-connected ulnar nerve compression, right upper (dominant) extremity. 3. Entitlement to a rating in excess of 10 percent prior to December 15, 2015, and in excess of 20 percent from December 15, 2015 for service-connected ulnar nerve compression, left upper extremity. 4. Entitlement to an increased rating for service-connected degenerative joint disease (DJD), left knee, currently evaluated as 10 percent disabling. 5. Entitlement to an increased rating for service-connected arthritis of the right knee, currently evaluated as 10 percent disabling. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from April to June 1997. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a Board hearing at the RO in October 2007, before the undersigned Veterans Law Judge (VLJ). In pertinent part, this hearing focused solely on the Veteran's claim for service connection for a low back disability and her claim for increased rating for her right knee disability. A transcript of that hearing is associated with the claims file. Procedural History In a March 2005 rating decision, the RO denied the Veteran's claim for a rating higher than 10 percent for her right knee arthritis. In April 2007, the RO issued a rating decision finding no new and material evidence to reopen her claim for service connection for a low back disability. These claims were timely appealed to the Board. In July 2008, the Board reopened the claim for service connection. Both matters were remanded to the RO for further development. Briefly, it is noted that these claims were mentioned within a May 2009 Joint Motion for Partial Remand (JMR) which was adopted by the United States Court of Appeals for Veterans Claims (Court) in May 2009. Importantly, the JMR was silent as to these issues, beyond merely noting that they were in remand status. With that said, following the July 2008 Board remand, these claims were remanded again in March 2010 and October 2011. Finally, these matters were last remanded by the Board in March 2012. At that time, the Board also took jurisdiction of the Veteran's inferred claim for TDIU. Shortly before the Board's March 2012 decision, the RO issued a March 2012 rating decision denying entitlement to an increased rating in excess of 10 percent for her service-connected bilateral ulnar nerve disabilities. The RO also denied a rating in excess of 10 percent for service-connected DJD of the left knee. These matters were subsequently timely appealed to the Board following its March 2012 decision. In February 2015, the Board remanded these claims for new VA examinations per the Veteran's statements that her disabilities had worsened. While on remand, the RO readjudicated, and again, denied the Veteran's claims in a January 2016 supplemental statement of the case. Thereafter, the RO issued an additional rating decision in February 2016, increasing her rating from 10 percent to 30 percent for her right extremity disability and from 10 percent to 20 percent for her left extremity disability. These increases were effective December 15, 2015. Finally, as these grants do not represent a total grant of benefits sought on appeal, the claims for increase remain before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to a rating in excess of 10 percent prior to December 15, 2015, and in excess of 30 percent from December 15, 2015 for service-connected ulnar nerve compression, right upper extremity; entitlement to a rating in excess of 10 percent prior to December 15, 2015, and in excess of 20 percent from December 15, 2015 for service-connected ulnar nerve compression, left upper extremity; entitlement to an increased rating for service-connected DJD, left knee, currently evaluated as 10 percent disabling; entitlement to an increased rating for service-connected arthritis of the right knee, currently evaluated as 10 percent disabling and entitlement to a total disability rating based on TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's currently diagnosed lumbar degenerative disc disease is the result of her service-connected bilateral knee disabilities and pes planus. CONCLUSION OF LAW The criteria for service connection for lumbar degenerative disc disease have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The claim for service connection for lumbar degenerative disc disease has been granted. Any error related to the VCAA is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2014). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2015). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran asserts her low back disability was either caused or aggravated by her service-connected disabilities of the knees and/or feet. See Board Hearing Transcript. As to current disability, lumbar degenerative disc disease was diagnosed on VA examination in November 2011. As to evidence of a service connected disability, the Veteran is currently service connected for bilateral pes planus, traumatic arthritis of the right knee and DJD of the left knee. The first and second elements of Wallin have thereby been met. The Board also finds that the clinical medical evidence of record is sufficient to warrant service connection on a secondary basis. In pertinent part, of record are two positive nexus opinions provided by the Veteran's private and VA physicians. The Board finds that when considered in conjunction these opinions provide a sufficient basis such as to warrant the grant of service connection. In May 2006, the Veteran submitted an opinion from her VA physician Dr. B. D., MD. From the outset, the Board acknowledges that this opinion was previously considered inadequate for adjudication purposes. See August 2008 Board Decision. However, further consideration of this piece of evidence along with corresponding medical records now renders the opinion adequate. With that said, Dr. D. opined that her lumbar spine disc disease was proximately due to her moderate/severe bilateral pes planus. Specifically, her service connected disabilities caused an altered gait which led to improper ambulatory mechanics. In rationalizing this opinion, Dr. D. cited to the review of current and past treatment reports and diagnostic testing reports. Further, in conjunction with this opinion, Dr. D. submitted a 1998 radiological diagnostic report of the Veteran's spine in order to illustrate basis of these findings. The Board finds this opinion highly probative and sufficiently rationalized on the evidence of record. Also of record, is a July 2013 opinion from the Veteran's private care physician Dr. C. D., PA-C, PHD. Dr. C. D. opined that her back condition was related to her service connected disabilities. Specifically, Dr. C. D. rationalized that her knee disabilities affected her gait and caused chronic pain with ambulation. Dr. C. D. noted that the altered gated had progressively worsened her diagnosed rotoscoliosis and arthritis, which in turn caused the bulging discs in her back to be further misaligned. In support of these contentions, Dr. C. D. cited to reviewing her VA hospital records, military service records, as well as, personal examination and treatment. The Board finds this opinion highly probative and sufficiently rationalized on the evidence of record, as well as, on historical physical examination of the Veteran. There are other opinions of record that have provided negative opinions. Those have been previously found to be lacking in probative value. Moreover, as a positive conclusion is being drawn, there is no harm to the Veteran by not discussing these opinions further. In sum, the record contains positive opinions linking the Veteran's service-connected disabilities to her lumbar degenerative disc disease. In addition, as discussed, the record lacks sufficiently probative medical evidence to the contrary. Therefore, the Board finds that the medical evidence in this case is, at minimum, in equipoise regarding the question of whether the Veteran's current lumbar degenerative disc disease is related to her service-connected knee and foot disabilities. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and her claim for service connection for lumbar degenerative disc disease is granted on a secondary basis. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for lumbar degenerative disc disease is granted. REMAND Right and Left Upper Extremity Disabilities By way of background, the Veteran filed her claim for increased ratings for her bilateral upper extremity disabilities in September 2011. In that regard, of record are VA examinations dated in December 2011, June 2012 and December 2015. In pertinent part, the December 2011 and June 2012 VA examination reports were predicated on an April 2011 electromyography (EMG) study. With that said, the June 2012 VA examiner concluded that further diagnostic testing, beyond the April 2011 study, was required prior to the proper adjudication of the Veteran's claim. The examiner specified that "at this time, I believe the appropriate course of action is to repeat the nerve conduction study and make a determination as to whether there is, in fact, any progression of the findings of the 8 April 2011 nerve conduction study and make a comparison." Regrettably, since this examination opinion was obtained no further nerve conduction study has been completed to assess the severity of the Veteran's disability. The Board notes that even the most recent VA examination report of record, in December 2015, did not contain a nerve conduction study or EMG. To that point, once VA undertakes the effort to provide an examination, it must provide an adequate one, or else, notify the Veteran why one cannot or will not be provided. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a remand is required to afford the Veteran a complete VA examination with the appropriate specified testing. Bilateral Knee Disabilities Review of the record establishes that at the time of the Veteran's most recent VA examination, in January 2016, she was unable to perform range of motion (ROM) testing. On examination, she reported that the severity of her pain precluded such testing. In that regard, the examiner remarked the following about the Veteran: She does seem to be in a severe amount of pain on exam today and is even walking with stiff legs as to not bend her knees because this causes increased pain. For this reason I am unable to fully perform an exam but her current symptoms are severe and represent a progression of her SC condition. In the instance case, the Veteran has consistently reported that her disabilities are greater than 10 percent. The statements of the examiner appear to indicate that her disabilities might indeed be much greater than 10 percent. A numerical report of the Veteran's ROM would be highly probative to the accurate determination of her level of disability for rating purposes. With that said, the record is unclear whether the Veteran's disabilities preclude her from completing ROM testing totally or just on the previous date of examination. As such, in order to afford the Veteran's claims proper consideration an additional attempt should be made to obtain ROM testing results. Therefore, while on remand the Veteran should be afforded a new VA examination to attempt to obtain this outstanding information. TDIU With regard to the Veteran's claim for a TDIU, the Veteran maintains that she is unemployable, in part, because of the totality of her disabilities. As the decisions with respect to the increased rating claims may affect the claim for a TDIU, the Board finds that the claim for a TDIU is inextricably intertwined with these claims still pending. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). In addition, review of the record reflects that despite the Boards March 2012 remand directives an opinion has not been obtained as to whether the Veteran's disabilities render her totally individually unemployable. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Rather, the record reflects that in June 2012 a VA examiner specifically requested that the Veteran's claim be referred to a "vocational rehabilitation" specialist to obtain such an opinion. The record is silent as to such a referral ever occurring. Therefore, while on remand the Veteran should receive an evaluation regarding her employability from a vocational rehabilitation specialist. For the foregoing reasons, these claims are remanded. Accordingly, the case is REMANDED for the following action: 1. Arrange for a VA examination by a neurologist to assess the manifestations and severity of the Veteran's upper extremity nerve disabilities. The entire electronic claims files (VBMS and Virtual VA) must be made available to the examiner in conjunction with the examination, and the report of examination should include a discussion of the Veteran's documented medical history and lay assertions. All appropriate tests and studies should be accomplished (with all results made available to the examiner before completion of his or her report), and all clinical findings should be reported in detail. The examiner should complete a nerve conduction study and EMG. If such examinations/tests are not deemed necessary, the examiner must provide an explanation. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. In preparing this report, the examiner must address all of the Veteran's complaints of symptomology regarding her upper extremities. In so doing, report the nature and severity (mild, moderate or severe incomplete paralysis or complete paralysis) of any related impairment to the nerves of the upper extremities. If an opinion cannot be provided without resorting to mere speculation, the examiner must so state and must provide a rationale for such conclusion. 2. Then arrange for the Veteran to be scheduled for an appropriate VA examination, to determine the current level of severity of her bilateral knee disabilities. All necessary tests and studies should be performed, to include range of motion testing. The examiner should render specific findings as to whether, during examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. The electronic claims file must be made available to the examiner for review in connection with the examination. A notation should be made in the examination report that this review has taken place. NOTE: If at the time of examination, the Veteran is once again unable or unwilling to complete range of motion testing the examiner is asked to opine whether an estimate as to the level of range of motion could be obtained. If an estimate can be provided, what is that estimate? Rationale for any such opinion provided, whether in the positive or the negative, must be given. 3. Provide the Veteran with an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist (or other appropriate specialist), with respect to her TDIU claim. The claims file should be made available to the examiner, and all appropriate tests should be performed. The examiner must opine as to whether, without regard to the Veteran's age or the impact of any non-service-connected disabilities, it is at least as likely as not that her service-connected disabilities, alone or in the aggregate, rendered her unable to secure or follow a substantially gainful occupation. In offering this impression, the examiner must acknowledge and take into account this Veteran's education, training, and work history. All findings and conclusions should be set forth in a legible report, accompanied by a rationale. In making this determination, the examiner should specifically address Dr. D.'s statement regarding employability. See July 2013 Correspondence. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs