Citation Nr: 1756568 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 12-01 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome, to include as secondary to service-connected right hand strain with tendonitis. 2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee strain with degenerative joint disease (DJD). 3. Entitlement to an increased disability rating in excess of 10 percent for right knee strain with degenerative joint disease (DJD). 4. Entitlement to an increased disability rating in excess of 10 percent for right hand strain with tendonitis. REPRESENTATION Appellant represented by: John S. Berry, Jr., Attorney at Law ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel INTRODUCTION The Veteran had active service from August 2005 to June 2010. These matters come to the Board of Veterans' Appeals (Board) from February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A September 2016 Board decision denied the Veteran's claims of entitlement to service connection for a left knee disability and entitlement to increased disability ratings for right knee strain with DJD and right hand strain with tendonitis, after which the Veteran appealed the matters to the United States Court of Appeals for Veterans Claims (Court). In June 2017, the Court issued an Order granting the parties' Joint Motion for Remand (JMR) of that same month. As discussed below, the Board finds that further development is necessary, and remand is required. The September 2016 Board decision also remanded the Veteran's claim of entitlement to service connection for carpal tunnel syndrome. As discussed below, the Board finds that further development is warranted. To the extent that the Veteran's appeal previously included a claim of entitlement to service connection for obstructive sleep apnea, the Board notes that such claim was fully granted within an October 2017 rating decision; therefore, it is no longer before the Board on appeal. Similarly, the June 2018 JMR noted that the Veteran was no longer appealing the Board's denial of his claims of entitlement to an increased disability rating in excess of 10 percent prior to March 4, 2015, and 30 percent thereafter, for bilateral pes planus, an increased disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD), and service connection for sinusitis; therefore, these claims are also no longer before the Board on appeal. Finally, the Board acknowledges the recent November 2017 request by the Veteran's attorney to clarify the issues currently before the Board on appeal and to hold the appeal in abeyance for 90 days following notification of certification of the appeal to the Board. However, as the actions taken herein are in compliance with the June 2017 JMR and the attorney's November 2017 request to reschedule a VA carpal tunnel examination due to lack of adequate notice, the Board finds there is no prejudice to the Veteran in proceeding to issue this remand, which is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017). As such, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After a review of the claims file, the Board has determined that additional evidentiary development is necessary regarding the Veteran's on appeal. Specifically, as discussed with the June 2017 JMR, remand is warranted in order to fulfill VA's duty to assist by obtaining adequate VA examinations and opinions regarding the Veteran's claims of entitlement to increased disability ratings for right knee and right hand disabilities and service connection for a left knee disability. Additionally, as requested by the Veteran's attorney in November 2017, remand is warranted in order to reschedule the Veteran for a VA carpal tunnel examination and to provide him adequate notice at his most recent address of record. VA's duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012). Furthermore, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). I. Right Hand As discussed within the parties' June 2017 JMR, the August 2011 VA examination is inadequate for rating purposes. Specifically, although the August 2011 VA examination found no limitation of motion of the Veteran's right hand, the VA examiner indicated that the functional impact of the disability caused problems lifting and carrying items, as well as pain, and moderately impacted the Veteran's ability to do chores. Additionally, the examiner did not address the extent of functional impairment during a flare-up or the extent to which motion is limited during a flare-up, despite the fact that the Veteran described the flare-ups as severe and occurring every one to two days. As such, remand is required to afford the Veteran an adequate VA examination (including clarification of the April 2011 VA examination) that addresses the extent of the Veteran's limitation of motion of his right hand due to pain, fatigue, weakness, lack of endurance, and incoordination during a flare-up and to clarify the extent of his loss of range of motion/mobility. See 38 C.F.R. § 4.2 (2017); Barr, 21 Vet. App. at 311-312. II. Right Knee With regard to the Veteran's right knee DJD, upon VA examination in August 2011, he reported severe, weekly flare-ups of his right knee disability. Although range of motion testing showed no loss of range of motion, the examiner indicated that the condition had a significant effect on the Veteran's usual occupation and that he had decreased mobility and problems with lifting and carrying. As such, the parties agreed within the June 2017 JMR that remand is required because the VA examiner did not address whether the Veteran experienced increased limitation of motion during a flare-up. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (it is appropriate to consider "a higher [disability] rating based on a greater limitation of motion due to pain on use including during flare-ups" and that a VA medical examiner should consider the factors stated in 38 C.F.R. § 4.40 (2017) and determine if a veteran's disorder exhibits "functional loss on use or due to flare-ups."); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The VA examiner's report is also internally inconsistent because it found no objective loss of range of motion yet also indicated that the Veteran had decreased mobility. Given the above, remand is required to afford the Veteran an adequate VA examination (including clarification of the April 2011 VA examination) that addresses the extent of the Veteran's limitation of motion of his right knee due to pain, fatigue, weakness, lack of endurance, and incoordination during a flare-up and to clarify the extent of his loss of range of motion/mobility. See 38 C.F.R. § 4.2; Barr, supra. III. Left Knee As discussed within the June 2017 JMR, the Board's previously denial of entitlement to service connection for a left knee disability relied primarily on an August 2011 VA examination to support its conclusion that the Veteran did not have a diagnosis of a left knee condition. Notably, although the August 2011 VA examiner stated that he was unable to establish a diagnosis related to the Veteran's left knee because there was "no pathology established based on today's evaluation," the examination report is unclear as the very next line appears to render a diagnosis of "left knee strain." Additionally, a diagnosis of left knee strain was also rendered within a July 2010 addendum to a July 2010 VA examination. The Board is mindful that the requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, on remand, a new examination with an opinion is warranted to clarify whether the Veteran has a current disability of the left knee. IV. Carpal Tunnel Syndrome The Veteran's claim of entitlement to service connection for carpal tunnel syndrome was previously remanded by the Board in September 2016 for an addendum medical opinion. In March 2017, a VA examiner stated that he was unable to render an opinion without the benefit of a full VA examination, including an electromyography (EMG) study. Thereafter, a scheduled VA peripheral nerves examination was cancelled after the Veteran failed to RVSP. A November 2017 correspondence from the Veteran's attorney asserts that the Veteran never received notice of the scheduled examination. The Board is mindful that the Veteran had previously submitted a change of address in January 2017, and a subsequent March 2017 VA examination request notes that his address within the Veterans Health Administration (VHA) database differed from that within the Veterans Benefits Administration (VBA) database; therefore, address verification was required before mailing an examination notification letter. Typically, in the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process, see Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992); however, in this instance, the Board finds that in order to fully regard the Veteran's due process rights, and absent a reason to question the credibility of the Veteran and his attorney regarding the assertion that he failed to receive proper notice, he will be given one more opportunity to appear for a scheduled VA examination concerning his carpal tunnel claim. Therefore, on remand, the AOJ must reschedule the Veteran for the previously requested peripheral nerves medical examination, provide him and his attorney with adequate prior notice of the examination date and location (to be sent to his current mailing address of record), and allow him this one additional opportunity to appear for an examination. The Veteran is hereby advised, however, that he is legally obligated to report for such medical examination. 38 C.F.R. § 3.655 (2017). The consequences of his failure, without good cause, to appear for an examination ordered in conjunction with his original compensation claim is that his claim shall be rated on the evidence of record. 38 C.F.R. § 3.655(b). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination(s) to assess the current severity of his service-connected right knee strain with DJD and right hand strain with tendonitis. The VA examiner should fully review the claims file and the directives of this remand. Any indicated diagnostic tests and studies must be accomplished and all pertinent symptomatology and findings should be reported in detail. A complete rationale for any opinions expressed should also be provided. The examiner must specifically address the extent of the Veteran's limitation of motion of his right hand and right knee due to pain, fatigue, weakness, lack of endurance, and incoordination during a flare-up and clarify the extent of his loss of range of motion/mobility. 2. Schedule the Veteran for a VA examination in connection with his claim of entitlement to service connection for a left knee disability. The claims file must be made available to the examiner for review. All appropriate testing should be conducted, including a full VA examination of the Veteran. A full and detailed rationale for all opinions, with citation to relevant medical findings or medical authority, must be provided. a) Specifically, the VA examiner should provide an opinion whether it is as likely as not (a 50 percent probability or greater) that the Veteran has a current left knee disability or has had a left knee disability at some point between 2010 and the present time. In rendering the above opinion, the examiner is asked to address the internally inconsistent August 2011 VA examination report, wherein the examiner found no pathology related to the left knee, and the July 2010 addendum opinion that documents the presence of left knee strain. b) If the examiner finds that the Veteran has had a current let knee disability for any period on appeal, the examiner is asked to provide the following opinions: i) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability had its onset during active duty service from August 2005 to June 2010. ii) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability is proximately due to his service-connected right knee strain with DJD. iii) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability is aggravated by his service-connected right knee strain with DJD. The term "aggravated" refers to a permanent worsening of the underlying condition beyond the natural progression of the disease, as contrasted with temporary or intermittent flare-ups of symptomatology which resolve with return to baseline level of disability. 3. Schedule the Veteran for a VA peripheral nerves examination, including EMG testing, with the August 2011 VA examiner (or another equally qualified VA examiner) to determine the nature and etiology of his claimed carpal tunnel syndrome. Properly advise the Veteran and his attorney that failure to appear for any examination as requested, without good cause, could adversely affect his appeal. 38 C.F.R. § 3.655 (2017). The AOJ must ensure that the Veteran and his attorney are provided with timely notice of the date, time, and location of the scheduled medical examination and clearly document that such notice is sent to his current mailing address of record. A copy of VA's correspondence notifying the Veteran of such examination must also be associated with the claims file. The VA examiner is specifically requested to review the entire claims file, including this remand, and to conduct any relevant examination or testing of the Veteran, as deemed necessary by the examiner. The examiner is informed that the Veteran is currently service connected for right hand strain with tendonitis and tendonitis of the left hand. Specifically, the examiner is asked to provide the following opinions: a) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed carpal tunnel syndrome had its onset during active duty service from August 2005 to June 2010. b) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed carpal tunnel syndrome is proximately due to his service-connected right hand strain with tendonitis and/or tendonitis of the left hand. c) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed carpal tunnel syndrome is aggravated by his service-connected right hand strain with tendonitis and/or tendonitis of the left hand. The term "aggravated" refers to a permanent worsening of the underlying condition beyond the natural progression of the disease, as contrasted with temporary or intermittent flare-ups of symptomatology which resolve with return to baseline level of disability. The VA examiner should set forth all examination findings, along with a complete rationale for any conclusions reached. 4. Following the above, review the resulting VA examination reports and opinions to ensure their adequacy. If any examination and/or opinion is inadequate for any reason, take any appropriate corrective action. 5. Thereafter, readjudicate the Veteran's claims on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his attorney with a supplemental statement of the case (SSOC) and a reasonable opportunity to respond, after which the matters should be returned to the Board for further adjudication, if otherwise in order. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).