Citation Nr: 1803795 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-41 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent disabling for service-connected chondromalacia patella of the right knee. 2. Entitlement to a rating in excess of 10 percent disabling for service-connected chondromalacia patella of the left knee. 3. Entitlement to a rating in excess of 10 percent disabling for limitation of motion of the right knee. 4. Entitlement to a rating in excess of 10 percent disabling for limitation of motion of the left knee. 5. Entitlement to service connection for a right foot condition, to include as secondary to chondromalacia patella of the right knee. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected conditions. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1984 to November 1984 and September 1986 to March 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that, while the Veteran underwent a VA foot conditions examination in June 2015, an additional examination to determine the nature and etiology is required to decide the claim for service connection for a right foot condition. With regard to the Veteran's claimed right foot condition, the Veteran has alleged that such was caused or aggravated by his service-connected right knee condition. As previously noted he underwent a VA foot conditions examination in June 2015. The examiner found that the Veteran suffered from bilateral pes planus and plantar fasciitis, and degenerative joint disease of the first MTP joint of the great toe. The examiner opined that the Veteran's current foot conditions were less likely than not secondary to his service-connected knee conditions. The examiner provided the rationale that there was nothing in the currently accepted, peer reviewed, credible and authoritative orthopedic literature that demonstrates that an intrinsic knee condition will induce plantar fasciitis or plantar fascia fibromatosis in either bilateral ipsilateral or contralateral feet. In addition, the examiner opined that the Veteran's condition was less likely than not directly related to his military service, and provided the rationale that there was no evidence of any complaints, treatment or diagnosis of a chronic foot condition in the Veteran's service treatment records and no evidence of chronicity. However, the examiner failed to discuss whether the Veteran's service connected right knee condition aggravated his right foot condition. Therefore, on remand an opinion that fully discusses secondary service connection as well as the Veteran's theories of entitlement should be obtained. Relevant to the Veteran's claims for increased ratings for his right and left knee conditions, the Court has held that, where the record does not adequately reveal the current state of claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The record reflects that the Veteran was most recently afforded VA orthopedic examinations in February 2017 and June 2015, which addressed his right and left knee conditions. The Board finds that a contemporaneous examination is necessary as the Veteran has alleged significantly worsening symptoms since his last VA examination. Specifically, the Veteran has alleged that his conditions are far worse than is represented by his current ratings and that his conditions warrant 100 percent ratings. Therefore, the Board finds that a remand is required in order to determine the Veteran's current level of impairment with regard to his service-connected right and left knee conditions. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). While the Board notes that the February 2017 VA examination would be contemporaneous, the Board finds that such does not appear to satisfy the range of motion testing required pursuant to a recent decision issued by the Court in Correia v. McDonald, 28 Vet. App. 158 (2016). The new examinations should include specific findings regarding the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. Regarding the Court's further ruling that the Veteran's "normal" joint should be tested for comparison to the service-connected joint, the Board notes that the Veteran is service-connected for both knees, and, as such, there is not a "normal" paired joint that can be measured as a point of comparison. The Board finds that the claim for entitlement to a TDIU is inextricably intertwined with the claims remanded herein, the outcomes of which could possibly have bearing on whether the Veteran meets the schedular criteria for TDIU benefits during the entirety of the appeal. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. The Veteran should be afforded appropriate VA examinations to determine the current nature and severity of his service-connected right and left knee conditions. The examiner should identify the nature and severity of all manifestations of the Veteran's right and left knee disorders. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran's right and left knee disorders on his daily activities and employability. The examiner must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. If this testing cannot be done, the examiner should clearly explain why this is so. In doing so, the examiner should provide a retrospective medical opinion on the Veteran's range of motion of both knees throughout the time period of the claim. That is, with consideration of the evidence of record and his history, comment on the historical severity of the Veteran's range of motion testing on both active and passive motion and in weight-bearing and nonweight-bearing. If this opinion cannot be provided, the examiner should clearly explain why this is so, including discussing whether the prior VA examinations are accurate representations of the Veteran's disability level. The examiner should also address the presence of lateral instability and/or recurrent subluxation, and the severity of such condition, as well as current or prior meniscal conditions and associated symptomatology. 3. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his right foot condition. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. Thereafter, the examiner is asked to opine: (a) For each diagnosed right foot condition, is it at least as likely as not (50 percent or higher degree of probability) that such disorder is related to the Veteran's military service? (b) If the Veteran's right foot condition was not directly caused by service, is it at least as likely as not that the Veteran's right foot condition was caused by his service-connected right knee conditions? (c) If the Veteran's right foot condition was not caused by his service-connected right knee conditions, is it at least as likely as not that the Veteran's right foot condition was aggravated by the Veteran's service-connected right knee conditions. For any aggravation found, the examiner should state, to the best of his/her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. 4. Readjudicate the appeal. 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). 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 (West 2014). _________________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).