Citation Nr: 1801646 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-31 568 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for chronic low back pain, spondylosis of the lumbosacral spine. 2. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, flexion of the left knee. 3. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, extension of the left knee. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected lumbosacral spine and/or left knee disability(ies). REPRESENTATION Appellant represented by: Harry Binder, Attorney ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active military service from September 1980 to September 1983. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2012 rating decision in which the RO, inter alia, denied higher initial ratings for the service-connected lumbar spine and left knee disabilities. The Veteran filed a notice of disagreement (NOD) in November 2012, and the RO issued a statement of the case (SOC) in June 2014. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in August 2014 and requested a hearing. As the Veteran disagreed with the initial ratings assigned following the awards of service connection for the spine and knee disabilities under consideration, the Board characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In September 2015, the Veteran appointed an attorney as his representative. The Board recognizes this change in representation. In May 2016, the Veteran, through his representative, withdrew his hearing request. Regarding characterization of the appeal, and as explained below, as the Veteran and his representative have asserted that he is unemployable due to his service-connected back and left knee disabilities, the Board has expanded the appeal to include the matter of entitlement to a TDIU due to these disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. Also, this appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. With respect to the claims for higher initial ratings for lumbar spine 98098and left knee disabilities, updated VA examinations are needed. The Veteran was last afforded VA examinations for these disabilities in June 2014. The passage of time alone does not require VA re-examination. See VAOPGCPREC 11-95; Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007). However, medical evidence received since the last examinations indicate that these disabilities may have increased since the prior examinations. See May 2016 and August 2016 representative correspondences. Consequently, the Board finds that the Veteran should be afforded new VA examinations to obtain contemporaneous, pertinent information to assess the current nature and severity of his service-connected chronic low back pain, spondylosis of the lumbosacral spine and degenerative joint disease of the left knee. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Additionally, the Board points out that decision of the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and non weight-bearing (as appropriate). and, if possible, with range of motion measurements of the opposite undamaged joint. The updated VA joint examinations must include the type of joint testing addressed in section 4.59 and Correia. Id. Next, addressing characterization of the appeal to include a TDIU claim, the Board notes that, in Rice, 22 Vet. App. at 453-54, the Court held that a claim for a TDIU is considered a component of a higher rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran has indicated in the August 2014 substantive appeal that his back and left knee disabilities render him unemployable, and in November 2015, the Veteran's private chiropractor opined that the back disability rendered the Veteran unemployable. Thus, the Veteran has sufficiently raised a claim for a TDIU due to one or more of the disabilities at issue in this appeal. However, more information is needed, and the AOJ should furnish and instruct him to complete Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) to clarify his employment history. The Board also points out that favorable action on the claims being remanded could favorably affect the TDIU claim. Thus, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the other claims being remanded. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). As Board action on the claim for a TDIU would be premature, at this juncture, this matter is being remanded, as well. The Veteran is hereby notified that failure to report any scheduled examination(s) without good cause, may well result in denial of his claim(s). See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to arranging for the Veteran to undergo further examinations, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Bronx VA Medical Center (VAMC), and that records from this system dated through April 1, 2016 are associated with the efolder; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the Bronx VAMC all pertinent, outstanding records of evaluation and/or treatment of the Veteran dated since April 1, 2016, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1) (2012); but see 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization, for VA to obtain, records of lumbar spine and/or knee treatment from any private (non-VA) provider(s). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted (to include arranging for the Veteran to under further examination, or otherwise obtaining medical comment, in connection with the TDIU claim) prior to adjudicating the claims on appeal. The AOJ should adjudicate the claims in light of all pertinent evidence, to particularly include that added to the electronic claims file since the last adjudication of the higher rating claims on appeal, Accordingly, these matters are hereby REMANDED for the following action: 1. Send to the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU due to service-connected low back and left knee disabilities. Specifically request a complete description of employment history since October 2011. 2. Obtain from the Bronx VAMC all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, dated since April 1, 2016. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all medical record of back and knee treatment from any non-VA medical provider(s) In the letter, explain what is needed to support a claim for a TDIU due to service-connected spine and/or left knee disabilities.. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examinations, by one or more appropriate medical professional(s), for evaluation of his service-connected lumbar spine and left knee disabilities. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)) must be made available to the designated individual(s), and each examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. For each report, all examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. Lumbar spine- The examiner should conduct range of motion testing of the thoracolumbar spine (expressed in degrees) in in active motion and passive motion, and on weight-bearing, and non-weight-bearing (as appropriate). 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 so state, and explain why. The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, if the examination is not conducted during a flare-up, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should clearly indicate whether the Veteran has any ankylosis of the lumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. The examiner should also indicate whether the Veteran has any associated neurological manifestation(s) of lumbar spine disability. If so, for each identified manifestation, the examiner should clearly indicate whether such constitutes a separately ratable disability, and, if so, should assess the severity of such disability as mild, moderate, moderately severe, or severe. The examiner should fully describe the functional effects of the lumbosacral disability on the activities of daily living, to include employment. Further, based on examination results and review of the record, the examiner should also clearly indicate whether the claims file reflects any change(s) in the severity of the disability at any point since the November 2011 effective date of the award of service connection; and, if so, the approximate date(s) of the change(s), and the severity of the disability as of each date. In doing so, the examiner must consider the November 2015 private clinician reports indicating increased back disability. Left knee- The examiner should conduct range of motion testing of the left knee (expressed in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing. The examiner should also conduct range of motion testing of the right knee, for comparison purposes 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 so state and explain why. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. Also, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Also the he examiner should indicate whether there is any ankylosis in the left knee, and, if so, whether it is favorable or unfavorable, and the angle at which the knee is held. The examiner should fully describe the functional effects of the left knee disabilities on the activities of daily living, to include employment. Further, based on examination results and review of the record, the examiner should also clearly indicate whether the claims file reflects any change(s) in the severity of left knee flexion or extension at any point since the November 2011 effective date of the award of service connection; and, if so, the approximate date(s) of the change(s), and the severity of the disability as of each date. In doing so, the examiner must consider and discuss the July 2016 private clinician reports indicating increased left knee disability. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to under any further examination, or otherwise obtaining medical comment, in connection with the TDIU claim) adjudicate the claims on appeal (to include the TDIU claim), in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication of the higher rating claims on appeal) and legal authority. 8. If any benefit(s)sought on appeal remain(s) denied, furnish to the Veteran and his attorney a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The AOJ is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).