Citation Nr: 1804292 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 05-03 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected chondromalacia patella of the left knee. 2. Entitlement to a rating in excess of 10 percent for service-connected chondromalacia patella of the right knee. 3. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative joint disease (DJD) of the left knee. 4. Entitlement to an initial rating in excess of 10 percent for service-connected DJD of the right knee. 5. Entitlement to an initial rating in excess of 60 percent for service-connected DJD of the lumbar spine with radiculopathy of the bilateral lower extremities. 6. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. 7. Entitlement to a certificate of eligibility for an automobile and automobile equipment or adaptive equipment only. 8. Entitlement to service connection for a dental disability manifested by tooth decay, including as due to medication prescribed to treat service-connected DJD of the lumbosacral spine, for purposes of VA outpatient treatment only. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from April 1985 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated January 2003, July 2010, and April 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This case has a lengthy procedural history. The January 2003 rating decision, in pertinent part, granted the Veteran's claims of service connection for DJD of the bilateral knees (which were characterized as separate service connection claims for arthritis of the left knee and for arthritis of the right knee); separate 10 percent ratings were assigned for each knee effective January 4, 2001. The RO also denied the Veteran's claims for ratings greater than 10 percent for chondromalacia patella of the right and left knees. In addition, the RO denied the Veteran's claim of entitlement to a certificate of eligibility for an automobile and adaptive equipment or adaptive equipment only. The Veteran disagreed with this decision in March 2003 and perfected a timely appeal in January 2005. A personal hearing was held at the RO in January 2009 before a Veterans Law Judge (VLJ), who is no longer employed by the Board. A copy of the hearing transcript has been associated with the Veteran's claims file. In March 2009, the Board denied, in pertinent part, the Veteran's higher initial rating claims for DJD of the bilateral knees and increased rating claims for chondromalacia patella of the bilateral knees. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2010, the Court granted a Joint Motion for Remand (Joint Motion) and vacated and remanded that part of the Board's March 2009 decision which denied the Veteran's higher initial ratings for DJD of the bilateral knees and increased ratings for chondromalacia patella of the bilateral knees. In the September 2010 rating decision, the RO granted a claim of service connection for DJD of the lumbosacral spine with radiculopathy of the bilateral lower extremities, assigning a 60 percent rating effective January 4, 2001, a temporary total (100 percent) disability rating effective January 19, 2001, based on the need for surgical or other treatment necessitating convalescence, a 60 percent rating effective April 1, 2001, a temporary total (100 percent) disability rating effective October 4, 2001, based on the need for surgical or other treatment necessitating convalescence, and a 60 percent rating effective December 1, 2001. The Veteran disagreed with this decision later in September 2010. He perfected a timely appeal in May 2012. In March 2011, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. The Board also inferred a TDIU claim based on a review of the record evidence. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In an April 2014 rating decision, the RO denied a claim of service connection for a dental disability manifested by tooth decay, including as due to medication prescribed to treat service-connected DJD of the lumbosacral spine (which was characterized as problems with teeth due to dry mouth as a result of taking medications for back problems), for purposes of VA outpatient treatment only. The Veteran disagreed with this decision later in April 2014; he perfected a timely appeal in November 2014 and requested a videoconference Board hearing at the RO. In a June 2016 decision, the Board remanded the claims of entitlement to a higher initial rating for DJD of the lumbosacral spine with radiculopathy of the bilateral lower extremities, entitlement to a TDIU, and entitlement to service connection for a dental disability manifested by tooth decay in order to afford the Veteran with a hearing before a VLJ. In January 2017, the Veteran failed to appear for a scheduled hearing before a VLJ without explanation; he has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017). The June 2016 Board decision also denied the Veteran's claims of entitlement to increased ratings for chondromalacia patella of the right and left knees, entitlement to higher initial ratings for DJD of the right and left knees, and entitlement to a certificate of eligibility for an automobile and automobile equipment or adaptive equipment only. The Veteran appealed the denials to the Court. In a July 2017 Order, granting a Joint Motion for Remand, the Court partially vacated the Board's June 2016 decision and remanded the claims of entitlement to increased ratings for chondromalacia patella of the right and left knees, entitlement to higher initial ratings for DJD of the right and left knees, and entitlement to a certificate of eligibility for an automobile and automobile equipment or adaptive equipment only for further development in compliance with the directives specified in the Joint Motion. In an August 2017 rating decision, the RO granted entitlement to a TDIU from December 16, 2015. However, the matter of entitlement to a TDIU prior to December 16, 2015 remains on appeal. As indicated above, the VLJ who conducted the January 2009 Board hearing is no longer employed by the Board. The Veteran was notified of this and offered an opportunity for another Board hearing in a September 2017 letter. However, he subsequently notified the Board that he did not desire another hearing. See the Veteran's hearing election response dated November 2017. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action on his part is required. REMAND As described above, pursuant to July 2017 Joint Motion, the Court partially vacated and remanded the Board's June 2016 decision with respect to the issues of entitlement to increased ratings for chondromalacia patella of the right and left knees, entitlement to higher initial ratings for DJD of the right and left knees, and entitlement to a certificate of eligibility for an automobile and automobile equipment or adaptive equipment only. In pertinent part, the parties to the July 2017 Joint Motion agreed that the Board errantly relied upon a February 2016 VA examination report, which failed to comply with the Court's holding in Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Specifically, the parties stated that, although the February 2016 VA examiner noted the Veteran's flare-ups of right and left knee symptomatology, she indicated that she could not portray his functional limitations during flare-ups in terms of range-of-motion loss, and she failed to explain why such detail could not feasibly be determined. In the July 2017 Joint Motion, the parties also determined that the Board erred when it determined that the Veteran was not entitled to a certificate of eligibility for an automobile and adaptive equipment or adaptive equipment only as a matter of law because he is not service-connected for any disability that results in loss or loss of use of his lower extremities. The parties indicated "that this is a factual inquiry rather than a legal inquiry, and the Board cited to no evidence pertaining to the 'actual remaining function' of Appellant's legs or feet due to his service-connected knee disabilities." Thus, pursuant to the July 2017 Joint Motion, the Veteran's claims of entitlement to higher ratings for service-connected chondromalacia patella of the right and left knees and DJD of the right and left knees must be remanded in order to afford him an adequate VA examination. To this end, the Board observes that the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016) is also applicable to the pending claims. In Correia, 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 nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court recently held that in addressing the nature of any flare-ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. Additionally, these holdings are pertinent to the Veteran's claim of entitlement to an initial rating in excess of 60 percent for service-connected DJD of the lumbosacral spine with radiculopathy of the bilateral lower extremities. In this regard, the Veteran was most recently afforded a VA examination in February 2016 as to the lumbosacral spine disability. Although the examiner indicated that the Veteran did not report flare-ups, the Board notes that the Veteran has previously endorsed flare-ups and now maintains that the February 2016 VA examiner failed to adequately address the severity of his service-connected lumbosacral spine and radiculopathy disabilities. See the Veteran's statement dated November 2017; see also the VA examination report dated July 2010 and the VA treatment records dated May 2008. In light of the foregoing and the fact that the February 2016 VA examination reports do not fully satisfy the requirements of Mitchell, Correia, Sharp, and 38 C.F.R. § 4.59, the Veteran should be afforded new VA examinations before a decision can be rendered on his increased rating claims. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. The Board notes that the Veteran's increased ratings claims are intertwined with the matters of entitlement to a TDIU prior to December 16, 2015 and entitlement to a certificate of eligibility for an automobile and automobile equipment or adaptive equipment only. 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). Therefore, these claims must also be remanded pending further evidentiary development of the increased ratings claims. With respect to the claim of entitlement to service connection for a dental disability manifested by tooth decay, certain dental conditions, including treatable carious teeth, are not considered disabling, and may be service connected solely for the purpose of determining entitlement to VA outpatient dental treatment. See 38 U.S.C. § 1712 (2012); 38 C.F.R. §§ 3.381, 17.161 (2017). The Veteran has asserted that he developed a dental disability manifested by tooth decay due to medication prescribed to treat service-connected DJD of the lumbosacral spine. The Board notes that the Veteran has not been afforded a VA examination as to this claim. As such, upon remand, he should be scheduled for a VA dental examination to determine whether he has a current dental disability and, if so, whether said disability is secondary to medication prescribed to treat his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The Veteran should be afforded a VA examination in order to determine the extent of his service-connected DJD of the lumbosacral spine with radiculopathy of the bilateral lower extremities. Access to the Veteran's electronic VA claims file must be made available to the examiner for review in connection with the examination. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). In rendering his/her findings, the examiner should identify any evidence of neurological manifestations due to the service-connected DJD of the lumbosacral spine to include the diagnosed neurological pathology of the right and left lower extremities. The examiner must identify the specific nerves involved or seemingly involved and describe the degree of impairment as mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis. In addition, the examiner should address the impact of the lumbosacral spine and radiculopathy disabilities upon the Veteran's industrial activities, including his ability to obtain and maintain substantially gainful employment. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. The Veteran should also be afforded a VA examination in order to determine the extent of his service-connected right and left knee disabilities to include chondromalacia patella and DJD. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. In addition, the examiner should address the impact of the right and left knee disabilities upon the Veteran's industrial activities including his ability to obtain and maintain substantially gainful employment. 4. Schedule the Veteran for a VA dental examination to determine the nature and etiology of any current dental disorder manifested by tooth decay. Access to the Veteran's claims file should be made available to the examiner for review in connection with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any current dental disorder manifested by tooth decay is it at least as likely as not causally related to or aggravated by a service-connected disability. (The Veteran contends that he developed a dental disability manifested by tooth decay due to medication prescribed to treat his service-connected DJD of the lumbosacral spine). A complete rationale should be given for all opinions and conclusions expressed. 5. Thereafter, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).