Citation Nr: 1803534 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-07 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a higher rating for lumbar spine degenerative disc disease L5-S1, currently rated as 10 percent disabling prior to February 18, 2010, as 20 percent disabling from February 18, 2010, and prior to January 7, 2015, and as 40 percent disabling from January 7, 2015, forward. 2. Entitlement to a higher rating for left knee osteochondritis dissecans with synovial osteochondromata of the posterior compartment, currently rated as 10 percent disabling prior to June 8, 2011, as 100 percent disabling from June 8, 2011, and prior to August 1, 2012, and as 30 percent disabling from August 1, 2012, forward. 3. Entitlement to a higher rating for right knee osteochondritis, currently rated as 10 percent disabling for the entire rating period. 4. Entitlement to a higher rating for GERD with erosive gastritis of the body of the stomach, currently rated as 10 percent disabling for the entire rating period. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 22, 2012, to include on an extraschedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The veteran served on active duty from November 1981 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA). According to a June 2010 rating decision, the issues of higher ratings for the lumbar spine and bilateral knee disabilities stem from a claim received on February 18, 2010. This is inaccurate. The Veteran actually raised these issues via a statement received on January 11, 2010. In it, he requested "a reevaluation of [his] previously denied benefits" and alluded to his back and knee symptoms. The Board further notes that approximately eleven months prior to the January 2010 statement, the RO, in a February 2009 rating decision, denied higher ratings for the Veteran's service-connected bilateral knee disabilities. In view of this, the Board finds that the Veteran's January 2010 request for "reevaluation of [his] previously denied benefits" is to be interpreted as a notice of disagreement with regard to the February 2009 denial of higher ratings for the service-connected knee disabilities. In sum, the issues of higher rating for the Veteran's knees comes before the Board from the February 2009 rating decision, not from the June 2010 rating decision. The February 2009 rating decision denied ratings in excess of 10 percent for the Veteran's bilateral knee disabilities. Subsequently, an October 2011 rating decision granted a temporary total rating for left knee surgery, along with a higher rating of 30 percent, effective August 1, 2012, for the service-connected left knee. This was not a full grant of the benefit sought, and the appeal continues. The June 2010 rating decision denied a rating in excess of 10 percent for the lumbar spine. Subsequently, February 2013 and March 2015 rating decisions granted a higher rating of 20 percent, effective February 18, 2010, and an even higher rating of 40 percent, effective January 7, 2015, both for the Veteran's lumbar spine. This was not a full grant of the benefit sought, and the appeal continues. The February 2013 rating decision granted service connection for GERD, with a rating of 0 percent, effective January 11, 2010. The Veteran appealed the rating assigned via a February 2013 notice of disagreement. Subsequently, a December 2015 rating decision granted a higher rating of 10 percent for the entire rating period. This was not a full grant of the benefit sought, and the appeal continues. During the appeal period, the Veteran raised the issue of entitlement to a TDIU. See 02/27/2013, Notice of Disagreement. He indicated that his lumbar spine and bilateral knee disabilities, along with his GERD, prevented him from securing or following any substantial gainful occupation. See 03/19/2013, TDIU Claim. He reported last working in September 2010 and becoming too disabled to work that same year. Id. A February 2014 rating decision granted entitlement to a TDIU, effective August 1, 2012, later revised to July 31, 2012. See September 2015 rating decision (codesheet). Nevertheless, the issue of a TDIU prior July 31, 2012, is under the Board's jurisdiction as part and parcel of the appeal from the rating assigned for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). With regard to the TDIU claim, the Board further notes that from June 22, 2012, to July 31, 2012, the Veteran's combined schedular rating is 100 percent. A 100 percent schedular rating is a higher benefit than TDIU. (The Board notes that this is distinguishable from periods of temporary total ratings assigned for a specific disability, as explained in more detail further in this decision.) Therefore, the issue of a TDIU is moot during that specific period. Accordingly, the Board has characterized the issue on appeal as entitlement to a TDIU prior to June 22, 2012. In July 2017, the Veteran testified before the undersigned at a Board hearing held at the RO. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At his July 2017 Board hearing, the Veteran reported recent treatment for his back. Specifically, he alluded to MRIs performed at the Good Samaritan Hospital (in February or March 2017) and the USC Medical Center (in May 2017). Both facilities are located in Los Angeles, California. VA has not received records of such treatment. On remand, VA should assist the Veteran in this regard. With regard to the knees, he last underwent a VA examination for this disability in January 2015. Subsequent to that date, the Court of Appeals for Veterans Claims, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In addition, as relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id. The January 2015 VA examination report include only active range of motion findings and do not include range of motion findings for passive range of motion. They also do not contain results in both weight-bearing and nonweight-bearing positions. As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination should be arranged. With regard to the Veteran's GERD, he last underwent a VA examination for this disability in July 2012. Subsequently, he submitted a September 2013 DBQ (received December 13, 2013) from his VA treatment provider. At his Board hearing, the Veteran reported excruciating epigastric pain that has required ER treatment. He described waking up with a "bubble of fluid" in his esophagus, with associated breathing difficulties. He also stated that pain goes to his back. In light of the Veteran's recent testimony, and considering that several years have passed since the last examination of record, the Board finds that a new VA examination is appropriate. VA must provide a new examination with consideration of all pertinent evidence when there is an indication that the record does not adequately reveal the current state of the claimed disability. Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007). With regard to the Veteran's back, while he underwent a VA examination for this disability as recently as January 2015, the Board again finds that a new VA examination would be useful. As already mentioned, at his Board hearing, the Veteran reported seeking treatment for his back during the past 12 months. Further, he described a series of severe muscle spasms within the last four months. Insofar as this evidence suggests a worsening of the Veteran's disability, he is entitled to a new VA examination to determine the current severity of his symptoms. With regard to the issue of entitlement to a TDIU prior to June 22, 2012, the Board notes that, for the period between June 8, 2011, and June 22, 2012, the Veteran was in receipt of a temporary total rating due to left knee surgery, per 38 C.F.R. § 4.30. Prior to June 8, 2011, he had a combined disability rating of 60 percent. Although a TDIU is ordinarily not for consideration where the disabilities are rated total, the Court has indicated that a TDIU may be for consideration where the TDIU is awarded on the basis of disabilities distinct and separate from those for which the total rating is in effect. Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). Here, the Veteran was in receipt of a temporary total rating for the left knee from June 8, 2011, to June 21, 2012. Thus, for that specific period, entitlement to a TDIU is for consideration only to the extent that it may be awarded on the basis of service-connected disabilities other than the left knee. The Veteran has indicated that he became too disabled to work in 2010 due to his service-connected lumbar spine, bilateral knee, and GERD disabilities. See 03/19/2013, TDIU Claim. A July 2012 VA examination reflects that the Veteran's lumbar spine and bilateral knee disabilities impacted his ability to work. As such, there is evidence of unemployability prior to June 22, 2012. However, prior to that date, the Veteran did not meet the schedular percentage threshold for a TDIU (aside from a brief temporary total rating). Accordingly, the case must be remanded for referral to the Director, Compensation Service, for consideration of whether a TDIU was warranted on an extraschedular basis prior to June 22, 2012. See 38 C.F.R. § 4.16(b). In addition, the Board finds that a retrospective medical opinion as to the Veteran's employability during that period would be helpful. See Chotta v. Peake, 22 Vet. App. 80 (2008). Finally, the RO should obtain and associate with the claims file any recent VA treatment records that are still outstanding. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Ask the Veteran to identify, and authorize the release of, any outstanding medical records related to his disabilities, to include records of recent 2017 MRIs of the lumbar spine from the Good Samaritan Hospital and USC Medical Center. Efforts to obtain those records should be documented and the Veteran should be notified of any failed efforts to obtain them, and allowed the opportunity to provide any missing records. All records received must be associated with the claims file. 3. Thereafter, schedule the Veteran for VA examinations to determine the current severity of his lumbar spine, bilateral knee, and gastroesophageal disabilities, and to comment on the functional impact of the Veteran's service-connected disabilities (specifically for the period prior to June 22, 2012). The examiner should note review of the entire claims file and conduct all appropriate tests. For the musculoskeletal disabilities, the examiner should measure and record all subjective and objective symptomatology, to include any limitation of motion or ankylosis and any functional impairment. The examiner should report any additional limitation of motion, in degrees, due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. This information is required by VA regulations as interpreted by the courts. The Veteran is competent to report limitation of motion during flare-ups. For the lumbar spine, the examiner should measure and record any neurological abnormalities associated with the spine disability, including but not limited to any bowel or bladder impairment. The examiner is asked to summarize the level of impairment due to any symptoms in the lower extremities as mild, moderate, moderately severe, or severe incomplete paralysis, or total paralysis. For the knees, the examiner should determine the effective range of motion in each of the Veteran's knees and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing, describing objective evidence of painful motion, if any, during each test and, if possible, comparing range of motion in the Veteran's right knee with the range of the opposite undamaged joint. If any of these findings are not possible, please provide an explanation. For GERD, the examiner should measure and record all subjective and objective manifestations of this disability. For TDIU, the examiner should make a retrospective assessment of the Veteran's functional impairment (due to his service-connected disabilities at the time) during the period prior to June 22, 2012. In particular, the examiner should elaborate on how symptoms related to the relevant disabilities affected his capacity to do both physical and sedentary work. The Veteran has stated that he last worked in September 2010, adding that he became too disabled to work around that time. A complete rationale must be provided for any opinion offered. All lay and medical evidence should be considered. If the examiner cannot provide an opinion without resort to speculation, he/she should explain why that is the case and what, if any, additional evidence is necessary for an opinion. 4. Thereafter, the Veteran's claim should be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU due to his service-connected disabilities for the period prior to June 22, 2012, i.e., an opinion as to whether his service-connected lung disability preclude him from securing and following gainful employment. 5. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. 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). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2016). ______________________________________________ Eric S. Leboff 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).