Citation Nr: 1800450 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-33 750A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a lumbosacral spine disability other than lumbosacral strain, to include post-operative lumbosacral spine degenerative disc disease residuals. 3. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain. 4. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease. 5. Entitlement to an initial rating in excess of 10 percent for right knee instability. 6. Entitlement to an effective prior to December 12, 2016, for a separate compensable rating for right knee instability. 7. Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease. 8. Entitlement to an initial rating in excess of 10 percent for post-operative bilateral foot scar residuals. 9. Entitlement to an initial compensable rating for right lower extremity radiculopathy. 10. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Charles D. Romo, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from July 1977 to December 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the St. Petersburg, Florida, Regional Office of the Department of Veterans Affairs (VA) which determined that new and material evidence had not been received to reopen the claim for service connection for a back disability and denied service connection for hypertension. A December 2012 rating decision granted service connection for right knee degenerative joint disease and left knee degenerative joint disease, and assigned 10 percent ratings, effective October 28, 2008; and established service connection for left knee instability and assigned a 10 percent rating, effective August 9, 2012. A December 2012 rating decision reopened a claim for service connection for a lumbosacral spine disability and denied service connection for post-operative lumbar spine degenerative disc disease. A December 2013 rating decision established service connection for post-operative bilateral foot scar residuals and assigned a 0 rating, effective December 26, 2012. A January 2014 rating decision proposed to reduce the rating for left knee instability from 10 percent to 0 percent and denied TDIU. In September 2014, the Agency of Original Jurisdiction effectuated the proposed reduction as of December 1, 2014. A May 2015 rating decision denied service connection for left foot drop, tinnitus, and bilateral hearing loss and denied special monthly compensation based on loss of use of the left foot. A June 2015 rating decision increased the initial rating for post-operative bilateral foot scar residuals from 0 percent to 10 percent disabling. The Veteran appeared at a February 2016 videoconference hearing before the undersigned Veterans Law Judge at the Veteran. A hearing transcript is of record. In August 2016, the Board determined that new and material evidence had been received to reopen a claim for service connection for a back disability; granted service connection for a back disability, left foot drop, and tinnitus; denied service connection for bilateral hearing loss; determined that the reduction of the rating for left knee instability from 10 percent to 0 percent, effective December 1, 2014, was improper and restored the rating; and remanded the issues of entitlement to service connection for hypertension and right knee instability; entitlement to increased ratings for right knee degenerative joint disease, left knee degenerative joint disease, and post-operative bilateral foot scar residuals; entitlement to TDIU; and entitlement to special monthly compensation based on the loss of use of the left foot to the Agency of Original Jurisdiction for additional development of the record. A September 2016 rating decision established service connection for lumbosacral strain and assigned a 20 percent rating, effective October 28, 2008; and restored a 10 percent rating for left knee instability, effective December 1, 2014. In November 2016, the Veteran's attorney submitted a notice of disagreement with the denial of service connection for a lumbosacral spine disability other than lumbosacral strain and the initial rating assigned for lumbosacral strain. A November 2016 rating decision established service connection for right lower extremity radiculopathy and assigned a 0 percent rating, effective November 23, 2015; established service connection for left lower extremity radiculopathy with left foot drop and assigned a 20 percent rating, effective November 19, 2009; and granted special monthly compensation based on the loss of use of one foot, effective January 15, 2013. A January 2017 rating decision assigned a separate 10 percent rating for right knee instability, effective December 12, 2016. In January 2017, the Veteran's attorney submitted a notice of disagreement with the initial ratings for both right lower extremity radiculopathy and right knee instability and the effective date for the award of a separate compensable rating for right knee instability. On and after March 24, 2015, claims for VA benefits are to be submitted on the appropriate claims form. 38 C.F.R. § 3.155 (2017). In a January 2017 written statement, the Veteran made contentions which may be reasonably construed as an informal application to reopen a claim for service connection for bilateral hearing loss. The Veteran should be provided with the appropriate claim form in order to submit an application to reopen the claim for service connection for bilateral hearing loss if he desires. In a May 2017 Application for Disability Compensation and Related Compensation Benefits, VA Form 21-526EZ, the Veteran claimed that service connection for left foot fracture residuals was warranted. The issue of whether new and material evidence has been received to reopen a claim for service connection for left foot fracture residuals has not been adjudicated by the Agency of Original Jurisdiction. Therefore, the Board does not have jurisdiction over that issue. That issue is referred to the Agency of Original Jurisdiction for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017); 38 U.S.C. § 7107 (a)(2) (2012). REMAND In the August 2016 Remand instructions, the Board requested that the Veteran be scheduled for a VA hypertension examination to determine that nature and etiology of the diagnosed hypertension. The examiner was specifically directed to address "the Veteran's statements that his blood pressure was monitored during service." The Veteran was provided a December 2016 VA hypertension examination. The Board observes that the examiner did not address "the Veteran's statements that his blood pressure was monitored during service." The VA physician commented only that "STR documentation goes against presence of a chronic hypertension condition during or proximate to SD Service" and "transient mild BP elevations at times of acute illness are noted--c/w stress reaction--not a chronic hypertension condition." Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Because of the examiner's failure to address the Veteran's competent and credible statements that he was monitored by military medical personnel for suspected hypertension during active service, the Board finds that further VA hypertension is required to adequately address the issues raised by the appeal and to comply with the August 2016 Remand instructions. The Veteran asserts that service connection for post-operative lumbosacral degenerative disc disease is warranted and the Agency of Original Jurisdiction erred in solely establishing service connection for lumbosacral strain. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Service connection shall also be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disability has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has not been provided a VA examination which addresses the relationship, if any, between post-operative lumbosacral spine disability and the now service-connected lumbosacral strain. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A January 2016 written statement from Ashraf Andrawis, M.D., of the Premier Spine & Pain Center shows that the Veteran received ongoing monthly treatment for back, neck, knee, and foot disabilities. Clinical documentation of the cited private treatment is not of record. VA clinical documentation dated after January 2017 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran has submitted timely notices of disagreement with the initial ratings assigned for lumbosacral strain, right knee instability, and right lower extremity radiculopathy and the effective date for the assignment of a separate compensable rating for right knee instability. A statement of the case that addresses those issues has not been issued. Where a Veteran has submitted a timely notice of disagreement with an adverse decision and no statement of the case has been issued, the Board should remand for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. Because the claim for TDIU is inextricably intertwined with other claims being remanded, the issue of entitlement to a TDIU must also be remanded. Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested. 1. Contact the Veteran and request that he provide information as to all treatment of the hypertension and post-operative lumbosacral spine disabilities and the service-connected lumbosacral strain, right knee, left knee, and foot scar disabilities after January 2016, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact Ashraf Andrawis, M.D., the Premier Spine & Pain Center, and all other identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record any VA medical records not already of record, including for treatment provided after January 2017. 3. Schedule the Veteran for a VA hypertension examination to assist in determining the nature and etiology of diagnosed hypertension and any relationship to active service. The examiner must review the record and should note that review in the report. The examiner must specifically address the Veteran's statements that his blood pressure was monitored by medical personnel during service. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all recurrent hypertensive disabilities found. (b) Opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified hypertensive disability had its onset during active service or is related to any incident of service, including the documented in-service elevated blood pressure readings and the Veteran's statements as to being followed for elevated blood pressure readings during active service. The examiner must specifically address the Veteran's statements that his blood pressure was monitored by medical personnel during service. 4. Schedule the Veteran for a VA spine examination to assist in determining the nature and etiology of post-operative lumbar spine disability and its relationship, if any to active service or service-connected lumbosacral strain. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all post-operative lumbar spine disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified post-operative lumbar spine disability had its onset during active service or is related to any incident of service, including the reported in-service parachute jumps. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any post-operative lumbosacral spine disability is due to or the result of service-connected lumbosacral strain. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any post-operative lumbosacral spine disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) due to service-connected lumbosacral strain. (e) Provide ranges of passive and active lumbosacral spine motion and for weight-bearing and nonweight-bearing. Opine whether there is any additional loss of function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. 5. Issue a statement of the case which addresses the issues of entitlement to increased initial ratings for lumbosacral strain, right knee instability, and right lower extremity radiculopathy; and entitlement to an effective date prior to December 12, 2016, for the assignment of a separate compensable rating for right knee instability. Notify the Veteran of his appeal rights and that he must submit a timely substantive appeal to receive appellate review of those claims. If a timely substantive appeal is received, return those claims to the Board. 6. Then readjudicate the claims on appeal. 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 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts 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).