Citation Nr: 1800934 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 08-34 061A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). 2. Entitlement to service connection for right ankle degenerative joint disease and osteochondral lesion; soft tissue edema, periarticular calcifications adjacent to medial malleolus, arthroplasty/ fixation and calcaneal spurs by x-rays, to include as secondary to service-connected left knee disability (right ankle disability). 3. Entitlement to a disability rating in excess of 30 percent for left knee injury, post-operative tricompartmental severe osteoarthritis by MRI of the left knee prior to February 7, 2014, and from April 1, 2015 (left knee disability). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1963 to June 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Subsequently jurisdiction was transferred to the RO in St. Petersburg, Florida. In April 2011, the Veteran testified at a video conference hearing. The Judge who conducted that Board hearing is no longer employed by the Board and the Veteran was afforded the opportunity for an additional hearing. Subsequently, in August 2017, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. The hearing transcripts for both hearings are of record. The case was previously before the Board in September 2011and was remanded for additional development. In May 2014, the case returned to the Board and was remanded again because the requested actions from the Board's September 2011 remand were not fully completed. Subsequently, the case returned in December 2015 and it was remanded to obtain additional records for the Veteran's left knee and the Board found the VA examination with respect to the right ankle disability as inadequate so another examination was required. The issues of a right ankle disability and an increased rating for a left knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At the August 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal regarding the issue of entitlement to TDIU. CONCLUSION OF LAW The criteria for withdrawal of the appeal for the issue of entitlement to TDIU have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by a Veteran or by his or her authorized representative. Id. At the August 2017 Board hearing, the Veteran informed the Veterans Law Judge on the record that he wanted to withdraw his claim for TDIU. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed ORDER Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU), is dismissed. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. As to the issue of a right ankle disability, the Board remanded this issue in order to obtain a complete and thorough rationale regarding the nature and etiology of the Veteran's disability. The Board requested the examiner to address if the Veteran had an ankle injury that preexisted service, if the Veteran's ankle injury was directly related to his military service, and if the Veteran's ankle was caused or aggravated by the Veteran's service-connected disabilities. Unfortunately, the Board finds the March 2017 VA examination inadequate to decide this case. The examiner's opinion adequately addressed the issues of the preexisting condition and direct service connection but did not provide a thoughtful and thorough analysis regarding the theory of secondary service connection. Specifically, the examiner focused their opinion on the absence of any treatment records and stated that there was no documentation for an altered gait. However, the record does reflect that the Veteran has been shown to have an altered gait. Therefore, the Board finds this examination inadequate and a remand is necessary to obtain a competent and credible medical opinion as to the nature and etiology of the Veteran's right ankle. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.310 (2015); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion without supporting clinical data or other rationale does not provide the required degree of medical certainty). As to the issue of a left knee disability, in the case of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the VA examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10. The Veteran was afforded a VA examination in March 2017 wherein he complained of flare-ups in his knee. Specifically, the Veteran reported daily intermittent pain with prolong standing and walking lasting few hours. The examiner indicated that the examination was not being conducted during a flare-up and the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. Moreover, the examiner stated that they were unable to say without mere speculation if pain, weakness, or incoordination significantly limits functional ability with flare-ups. Lastly, the examiner indicated that she was unable to determine or describe any specific physical or functional limitations that will occur due to pain, weakness, fatigability or incoordination when a joint is used repeatedly over time since it would be speculative with regard to this hypothetical situation. Although the examiner indicated that they could not determine the impact of the Veteran's functional impairment during a flare-up without resorting to speculation, he did not indicate whether the inability to provide a range-of-motion estimate without resorting to speculation was due to lack of knowledge among the medical community or based on the lack of procurable information. Moreover, the examiner did not take into account that the Veteran had a total knee replacement and did not address the relevant factors that are appropriate to that Diagnostic Code. Thus, a remand is necessary in order to provide the Veteran with a new examination. While the appeal is in remand status, the AOJ should also obtain and associate with the record any outstanding VA treatment records. See 38 U.S.C. § 5103A(d) (2012). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's contemporaneous VA treatment records from October 12, 2017, to the present. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's right ankle disability. After a review of the claims file and an examination of the Veteran, the examiner should provide answers to the following questions: Is it as least as likely as not (50 percent probability or greater) that the Veteran's disability is caused or aggravated by any of his service-connected disabilities such as his service-connected left knee disability? The examiner's opinion should note that the Veteran's private doctor has indicated that the Veteran does have an altered gait due to his service-connected left knee. The examiner's opinion should also note that Dr. J. M. who is a VA orthopedist has stated in June 2011 that "there is a possibility that transfer of weight to the right lower extremity may well be causing the deterioration." 3. Schedule the Veteran for a VA examination to determine the current severity of his left knee disability. The claims file should be made available to and reviewed by the examiner. (A). Full range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. (B). In the event that that the Veteran reports that his disabilities result in flare-ups, the examiner should request the Veteran to identify the extent of his pain during a flare up, the functional loss during a flare-up and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. In providing all of the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Then readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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 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). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs