Citation Nr: 1801006 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11-18 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an undiagnosed skin illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. 2. Entitlement to a disability rating in excess of 10 percent for chondromalacia of the right knee, status post patellectomy. 3. Entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee, status post patellectomy. 4. Entitlement to an initial compensable disability rating for surgical scars, right knee associated with status post patellectomy. 5. Entitlement to an initial compensable disability rating for surgical scars, left knee associated with status post patellectomy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran had active service from February 1988 to September 1993. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2009 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims folder. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND With regard to the Veteran's claim of entitlement to service connection for an undiagnosed skin illness, the Veteran contends that she has an undiagnosed skin condition that is due to Gulf War syndrome. See, e.g., the September 2017 Board hearing transcript, page 18. The Veteran presented testimony during the September 2017 Board hearing indicating that during service in the Persian Gulf, she noticed red blotches on her skin that itched and changed color. She further testified that during her service in Saudi Arabia, she drove a fuel tanker and was exposed to different types of fuel that may have aggravated her skin condition. Id. at pgs. 19, 24. Although the Board notes that the Veteran's service treatment records are absent treatment for a skin condition, the Board finds the Veteran credible to report redness of her skin and exposure to different types of fuel as her personnel records verify her military occupational specialty as a motor transport operator. The Board further notes that current medical records document treatment for hives. See, e.g., a VA treatment record dated May 2017. The Veteran was provided a VA Gulf War examination in August 2016. However, the VA examiner did not address any of the Veteran's symptoms related to a skin condition or whether the Veteran had an undiagnosed skin illness. As such, the Board finds that the VA examination is insufficient and that further examination on remand is warranted in order to ascertain the nature and etiology of the Veteran's skin symptomatology and whether she has objective indications of a chronic skin disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. Recent VA outpatient treatment records in November 2017 show that the Veteran has been diagnosed and treated for cholinergic urticaria. An examination is necessary to determine if this skin disorder is the same as that described by the Veteran as onset during service or whether the current disorder was caused by any aspect of service including exposure to hazards in the Persian Gulf. With respect to the Veteran's claims of entitlement to increased disability ratings for right and left knee chondromalacia status post patellectomy and total arthroplasty, the Board notes that for disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2017), pertaining to functional impairment. In applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). Further, as required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet.App. 158 (2016). The U. S. Court of Appeals for Veterans Claims held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The Veteran was most recently afforded a VA examination for her right and left chondromalacia status post patellectomy in January 2017. Pertinently, the Veteran complained of pain and flare-ups in her knees as well as functional loss in that she was not able to put pressure on her legs. Upon examination, range of motion testing of the Veteran's right knee revealed flexion to 105 degrees and extension to zero degrees as well as left knee flexion to 75 degrees and extension to zero degrees. Crucially, the examiner documented objective evidence of pain with motion of the knees. In Mitchell, the Court found similar examination findings to be inadequate because the examiner did not explicitly report "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." In this case, the examiner noted pain on range of motion of the Veteran's knees but did not indicate at what point in the range of motion that pain began. Pertinently, this finding may provide the Veteran with an increased disability rating for her right and left knee chondromalacia status post patellectomy. Moreover, both knees are damaged, but the examination report does not include testing on both active and passive ranges of motion in weight and non-weight bearing postures. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2017); see 38 C.F.R. § 19.9 (2017). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). In light of the foregoing, the Board finds that an additional examination of the Veteran's knees is warranted. Also, while the VA examiner noted that there was pain on passive range of motion testing, he did not report at what point in range of passive motion testing that pain began. Such findings should be reported on remand. Finally, the Board notes that the claims of entitlement to increased disability ratings for right and left knee surgical scars are inextricably intertwined with the claims of entitlement to increased ratings for the Veteran's right and left knee chondromalacia status post patellectomy. In other words, development of these claims may impact her scars claims in that examination of her knees may reveal a worsening of her scars. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. The Board further finds that the VA examiner, in providing an examination of the Veteran's knees on remand, should also evaluate the severity of the Veteran's surgical scars. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination by an appropriate medical profession in order to determine the current nature and etiology of her claimed skin condition. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. (A) The examiner should note and detail all reported skin symptoms. (B) The examiner should specifically state whether the Veteran's skin symptoms are attributed to a known clinical diagnosis. (C) If any symptoms of a skin condition have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (D) For each diagnosed disorder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder is related to the Veteran's service, to include the Veteran's credible report of exposure to different types of fuel while performing her duties as a motor transport operator and her report of experiencing redness of her skin. A rationale for any opinion offered should be provided. 2. Schedule the Veteran for appropriate VA examination(s) to assess the orthopedic manifestations of the Veteran's service-connected right and left knee chondromalacia status post patellectomy. Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should also test the range of motion of the left and right knees in active motion, passive motion, weight-bearing, and nonweight-bearing. 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 why that is so. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. The examiner should assess the level of severity of the Veteran's right and left knee surgical scars associated with her right and left knee chondromalacia status post patellectomy. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ J.W. FRANCIS 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).