Citation Nr: 1803172 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-06 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected disability. 2. Entitlement to an increased rating for right ankle sprain with degenerative joint disease, currently rated as 10 percent disabling. 3. Entitlement to an increased rating for left knee patellofemoral chondromalacia, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for right knee patellofemoral chondromalacia, evaluated as 10 percent disabling prior to July 20, 2012, as 100 percent disabling from July 20, 2012 to December 31, 2013, and as 10 percent disabling thereafter. 5. Entitlement to increased rating for status post right navicular fracture, currently evaluated as 10 percent disabling. 6. Entitlement to an increased rating for left shoulder limited motion, status post dislocation, evaluated as 20 percent disabling prior to January 31, 2013, and as 30 percent disabling thereafter. 7. Entitlement to an increased rating for left upper extremity peripheral neuropathy (previously rated as deltoid and teres palsy), evaluated as 20 percent disabling prior to June 7, 2016 and as 30 percent thereafter. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disability(ies) (TDIU). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from June 1981 to September 1984. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. In February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In August 2017 correspondence, the Veteran submitted a motion for advancement on the docket due to financial hardship. The Veteran is in receipt of a 90 percent disability rating which is meant to financially compensate him for the effects his service-connected disabilities have on his employment ability. In addition, he is in receipt of Social Security Administration (SSA) benefits, and also in receipt of retirement benefits from the U.S. Postal Service. The Board finds that he has not shown severe financial hardship such as to warrant advancement on the docket. In addition, he has not been shown to have a serious illness or advanced age which would warrant advancement on the docket. Therefore, his motion is denied. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND All Issues The Veteran is in receipt of SSA disability benefits, and he has submitted a copy of the SSA decision; however, the medical records supporting the decision were not provided. VA should attempt to obtain all medical evidence used by the SSA in rendering its decision. Low back The Veteran contends that he has a low back disability which has been aggravated by his service-connected knees, ankle, and left shoulder disabilities. An August 2014 VA examination report (by Dr. R. P.) reflects that it is less likely than not that the Veteran's low back disability (spondylosis of the lumbar spine) is due to his service-connected disabilities. Dr. R.P. noted that the Veteran had two post service injuries to his back. Dr. R.P. noted that the Veteran used a cane but that his gait was not antalgic. Dr. R.P opined that the Veteran's back complaints were more likely due to the Veteran's post-service accidents and normal aging process. He also stated that there was no medical evidence to explain the Veteran's current increase in his low back pain. In an April 2017 VA "addendum" to a March 2017 VA record, Dr. O. Mandal stated that "based on physical exam and history, back pain most likely due to R SI joint dysfunction which is most likely from altered gait mechanics and misalignment from his service connected knee conditions." The Veteran had reported that his back "goes out" a few times a month, worsening in the last few years, worse after knee surgery." Dr. O.M. failed to note what "history" upon which he was relying, failed to note that the Veteran had two prior accidents with chronic back complaints, failed to note that the Veteran had back complaints prior to any altered gait, and failed to the note that the Veteran had spondylosis of the spine. Post-service clinical records reflect that in October 1997, the Veteran was involved in a motor vehicle accident with resulting low back pain and stiffness. He continued to seek treatment on multiple occasions between October 1997 through February 1998, was diagnosed with L/S sprain, and it was recommended that he use a lumbar support in a chair, car, and couch. When he continued to have pain four months after the motor vehicle accident, he was scheduled for back classes (see October 5, 1997, November 24, 1997, December 16, 1997, February 3, 1998, and February 12, 1998 private records). The Veteran had another motor vehicle accident in October 2000 with resulting back pain. At that time, it was noted that he had a history of back pain since October 1997 (see October 5, 17, 19, 2000 private clinical records). Records in January 2001 and February 2001 reflect that he continued with "persistent back pain" and "chronic back pain" and was diagnosed with mechanical back pain. A September 2007 private record reflects that the Veteran reported that in August, a vehicle had run into his home, and he had fallen and injured his low back. He was assessed with a low back sprain. The Board finds that SSA records may provide additional evidence of the level of the Veteran's back disability prior to any altered gait. The Board also finds that a supplemental opinion may be useful to the Board on the issue of aggravation. The Veteran was noted to have a normal gait at a 2009 VA examination, an abnormal gait in 2013, a normal gait in 2014, and an abnormal gait in 2017. If the clinician finds that it is as likely as not that a service-connected disability has aggravated the Veteran's back disability, the clinician should, as reasonably possibly, provide an assessment of the likely level of aggravation in terms of additional degrees lost in flexion and extension. Right Ankle Left Knee Right Knee The Veteran is in receipt of service connection for bilateral patellofemoral chondromalacia and right ankle degenerative joint disease. The most recent VA examination report is from September 2013. The Board finds that the Veteran should be afforded another VA examination, which complies with the Court's opinion in Correia v. McDonald, 28 Vet. App. 158 (2016) as it relates to 38 C.F.R. § 4.59, which requires that VA examinations include joint testing for pain on both active and passive motion, and both weight-bearing and non-weight-bearing. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all outstanding VA and non-VA clinical records for the Veteran's disabilities. 2. Attempt to obtain all medical records used by the SSA in rendering its 2014 decision on the Veteran. 3. Schedule the Veteran for a VA examination to determine the current extent of his service-connected right and left knee and right ankle disabilities. In particular, the examiner is requested to: a. Test the range of motion of the Veteran's knees and ankles in active motion, passive motion, weight-bearing, and non-weight-bearing, if possible. 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. b. The examiner should consider the Veteran's reports of flare-ups (to include frequency and duration of such) and portray any related functional loss in terms of additional range of motion loss. If the examiner is unable to do so, the examiner must indicate why. c. The examiner should review the prior VA examination report from 2013 and provide a retrospective opinion, if reasonably possible, which identifies the range of motion of the Veteran's knees and ankles in active motion, passive motion, weight-bearing, and non-weight-bearing. If it is not possible to provide such an opinion without resorting to mere speculation, please so state and provide an explanation as to why an opinion cannot be given. 4. With regard to the Veteran's low back, obtain a supplemental clinical opinion on whether it is as likely as not (50 percent or greater) that a service-connected disability worsens his back disability. The clinician should consider the pertinent evidence of record, to include: a.) Post-service clinical records which reflect that in October 1997, the Veteran was involved in a motor vehicle accident with resulting low back pain and stiffness; b.) 1997 and 1998 private records which reflect continued complaints, a diagnosis of L/S sprain, recommendation to use a lumbar support in a chair, car, and couch, and back classes (e.g. October 5, 1997, November 24, 1997, December 16, 1997, February 3, 1998, and February 12, 1998 private records.); c.) October 2000 private records which reflect another motor vehicle accident with resulting back pain (e.g. October 5, 17, 19, 2000); d.) January 10, 2001 and February 27, 2001 private records which note "persistent back pain" and "chronic back pain" and a diagnosis of mechanical back pain; e.) a September 2007 private record which reflects that in August 2007, a vehicle had run into the Veteran's home, causing him to fall and injure his back, an assessment of low back sprain; f.) that the Veteran was found to have a normal gait at times and abnormal gait at times (e.g. normal gait at a 2009 VA examination, an abnormal gait in 2013, a normal gait in 2014, and an abnormal gait in 2017); g.) the August 2014 VA examination report; and h.) the April 2017 VA addendum" to a March 2017 VA record by Dr. O. Mandal. which notes a right SI joint dysfunction. The clinician should opine as to the following: i.) please provide the specific diagnosis as to any SI joint dysfunction, and whether it is at least as likely as not due to a service-connected disability (i.e., right knee, left knee, right ankle) causing an altered gait. ii.) whether it is as likely as not (50 percent or greater) that a service-connected disability worsens the Veteran's back disability. iii.) if the clinician finds that it is as likely as not that the Veteran's service-connected disability (ies) have aggravated his back disability, the clinician should, as reasonably possibly, provide an assessment of the likely level of aggravation in terms of additional degrees lost in forward flexion, lateral flexion, extension, and rotation (i.e. the additional functional limitation of the back caused by the Veteran's service-connected disability). If the clinician cannot render adequate opinions without an examination, the Veteran should be scheduled for such. 5. Following completion of the above, readjudicate the issues on appeal. If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration The appellant 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).