Citation Nr: 1746954 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 14-05 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection, to include on a secondary basis, for a back disorder. 2. Entitlement to a compensable rating for left knee iliotibial band syndrome. 3. Entitlement to a compensable rating for right knee iliotibial band syndrome. 4. Entitlement to a compensable rating for bilateral calcaneal bursitis. 5. Entitlement to a 10 percent rating under 38 C.F.R. 3.324 for multiple, noncompensable, service-connected disabilities. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Stephanie Grogan, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Houle, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1989 to July 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2011 and October 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 2017, the Veteran testified at a videoconference Board hearing before the undersigned at the Muskogee RO. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND The Board finds that additional development is required prior to further disposition of the Veteran's claims. Back Disorder The Veteran last underwent a VA examination for his back disorder in July 2012. During the examination, the Veteran reported mild to severe pain levels accompanied by increased pain with prolonged standing, walking, and climbing stairs. The Veteran reported flare-ups, where pain drifts upwards into his back along his right side. The examiner opined that it was less likely than not that the Veteran's back disorder was due to or the result of his service-connected bilateral calcaneal bursitis, right knee iliotibial syndrome, or left knee iliotibial syndrome, noting that these service-connected disabilities would not cause degenerative disc disease or a herniated disc. The Board finds the examiner's July 2012 opinion inadequate for evaluation purposes because it did not address whether the Veteran's back disorder was aggravated by his service-connected bilateral calcaneal bursitis, right knee iliotibial syndrome, or left knee iliotibial syndrome, and if so, the extent of the aggravation. In light of the evidence of possible aggravation, the Board finds that a remand is necessary for a new medical opinion. In a secondary service-connection claim, a medical opinion that a disability is not the result of or due to an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Right Knee Iliotibial Band Syndrome and Left Knee Iliotibial Band Syndrome The Veteran last underwent a VA examination for his right knee iliotibial band syndrome and left knee iliotibial syndrome in July 2014. During the examination, the Veteran reported a worsening in symptoms and that he experienced flare-ups which impacted his squatting, climbing, and walking abilities. The examiner noted additional limitation of functional ability of the right and left knee joints during flare-ups and repeated use over time, however, the examiner stated that he was unable to provide the degree of additional range of loss motion, as this information could only be speculated. The United States Court of Appeals for Veterans Claims (Court) addressed the adequacy of a VA examiner's opinion as it pertains to additional functional loss during reported flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that a new VA examination and opinion are necessary when the examiner does not obtain information from the Veteran regarding the severity, frequency, duration, or functional loss manifestations of any reported flare-ups, and that in declining to offer an opinion regarding additional functional loss as it relates to reported flare-ups, the examiner must provide adequate rationale for doing so. Sharp v. Shulkin, No. 16-1385 (September 6, 2017). The Board finds the July 2014 VA examination for the Veteran's right iliotibial band syndrome and left iliotibial band syndrome to be inadequate for evaluation purposes because the examiner did not estimate range of motion loss based on the Veteran's reported flare-ups and their impact. In declining to provide an opinion on this matter, the examiner's rationale was inadequate, as he did not offer an explanation as to why an opinion could not be rendered, nor did he cite to anything in the record or state that he lacked the necessary knowledge or experience to offer this type of opinion. Additionally, during his February 2017 hearing, the Veteran asserted that his right and left knee disabilities have worsened since his July 2014 VA examination. Specifically, the Veteran contended that he experienced a dull aching pain in his knees that worsened with sitting and bending his knees. Despite taking daily medication to treat his pain, as well as receiving treatment from various doctors over the years, the Veteran asserted that he experienced pain in his knees on a daily basis, and that this pain had worsened over time. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, the Board finds that a remand is necessary for a new VA examination. Bilateral Calcaneal Bursitis During his February 2017 hearing, the Veteran asserted that his bilateral calcaneal bursitis had worsened since his July 2014 VA examination. Specifically, the Veteran contended that despite undergoing surgeries in 2012 and 2015 to treat his symptoms, he continues to experience pain in his heels, which has worsened since his last VA examination. He reported a burning and stretching sensation in his heels and that he currently wears orthotics in his shoes for arch support and to help with his pain. Despite taking daily medication to treat his pain, as well as receiving treatment from various doctors over the years, the Veteran asserted that he experienced pain in his heels on a daily basis, and that this pain has worsened over time. Therefore, to ensure that the record reflects the current severity of the Veteran's disability, a new examination is needed to properly evaluate his service-connected bilateral calcaneal bursitis. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 10 Percent Rating under 38 C.F.R. 3.324 for Multiple, Noncompensable, Service-Connected Disabilities The Board notes that the Veteran's claim of entitlement to a 10 percent rating based on multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324, is inextricably intertwined with the foregoing issues, and so disposition of the issue is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran's claim for the second issue). TDIU The Board notes that the Veteran's claim for a TDIU is inextricably intertwined with the foregoing issues, and so disposition of the issue is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran's claim for the second issue). DD 214 Lastly, the Veteran's DD 214 is not of record. The AOJ should ensure that a copy of his DD 214 is associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the Veteran's DD 214, or equivalent verification of service, and associate it with the claims file. 2. Thereafter, send the Veteran's claims file to an appropriate medical professional to determine the etiology of any diagnosed back disorder. The Veteran's electronic claims file must be made available to the designated professional for review. The examiner must provide a rationale for all opinions provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. Following the review of the claims file, the examiner is then requested to respond to the following: a) Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed back disorder is etiologically related to service. b) Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed back disorder is caused by the Veteran's service-connected right knee iliotibial band syndrome, left knee iliotibial band syndrome, or bilateral calcaneal bursitis. c) Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed back disorder is aggravated by the Veteran's service-connected right knee iliotibial band syndrome, left knee iliotibial band syndrome, or bilateral calcaneal bursitis. If the requested opinions cannot be provided without a new examination, one should be scheduled. 3. Schedule the Veteran for a VA examination to determine the nature and current severity of his service-connected right knee iliotibial band syndrome and left knee iliotibial band syndrome. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. In particular, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If possible, provide these tests for the opposite joint. If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, e.g., non-weight-bearing, the examiner should clearly explain why that is the case. The rationale for all opinions expressed should be provided. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. b) Indicate whether the examination is taking place during a period of flare-up, and if it is not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, severity, and functional impairment. c) Provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up. If the examiner cannot estimate the degrees of additional range of motion during flare-ups 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 or by a deficiency in the record or the examiner. The examiner should address how the Veteran's right knee iliotibial band syndrome and left knee iliotibial syndrome impact his activities of daily living, including his ability to obtain and maintain employment. 4. Schedule the Veteran for a VA examination to determine the nature and current severity of his service-connected bilateral calcaneal bursitis. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. The rationale for all opinions expressed should be provided. The examiner is asked to address whether there is a weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. The examiner should address how the Veteran's bilateral calcaneal bursitis impacts his activities of daily living, including his ability to obtain and maintain employment. 5. Thereafter, readjudicate the issues on appeal, to include the issues of entitlement to a 10 percent rating under 38 C.F.R. 3.324 for multiple, noncompensable, service-connected disabilities and entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplement statement of the case, given the opportunity to respond, and the case should be thereafter returned to the Board for further appellate review, if warranted. The Veteran 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 case 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). _________________________________________________ Thomas H. O'Shay 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) (2016).