Citation Nr: 1804340 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-08 290A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for cervical spine disability. 2. Entitlement to service connection for lumbar spine disability. 3. Entitlement to service connection, to include on a secondary basis, for left knee disability. 4. Entitlement to service connection for residuals of head injury, to include headaches. 5. Entitlement to service connection for right wrist disability. 6. Entitlement to an initial disability rating in excess of 20 percent, for right knee meniscal tear, as of February 11, 2014. 7. Entitlement to an initial disability rating in excess of 10 percent, for right knee degenerative joint disease (DJD), as of February 11, 2014. 8. Entitlement to service connection for an acquired psychological disorder, to include PTSD and mental stress. 9. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to May 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction has since been transferred to the North Little Rock, Arkansas VA RO. In June 2014, the Veteran testified at a Board videoconference hearing. A copy of the transcript of that hearing has been associated with the claims file. In a May 2016 letter, the Board notified the Veteran that the Veterans Law Judge who conducted his June 2014 hearing was no longer available to participate in a decision in his appeal. Accordingly, the Veteran was advised of his right to another optional Board hearing. In May 2016, the Veteran notified the Board that he did not wish to appear at another Board hearing. In a September 2016 decision, the Board denied the Veteran's service connection and increased rating claims on appeal. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2017 Order, the Court vacated the Board's September 2016 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that the record was unclear whether post-service medical records from Central Arkansas Veterans Healthcare System (CAVHS) were still outstanding as the record did not show whether CAVHS complied with the Board's remand directives, whether any VA medical records might be missing, or whether proper notice of any missing or unavailable records was provided to the Veteran. Accordingly, the JMR found the Board failed to provide adequate reasons and bases for finding the Secretary's duty to assist had been satisfied. Additionally, with regard to the service connection claims for cervical spine, lumbar spine, residuals of head injury and right wrist disability, the JMR found the Board erred by not addressing whether the April 2015 VA examination reports complied with the terms of its November 2014 remand directives. Lastly, with regard to the Veteran's increased rating claim on appeal, the JMR found the Board erred by failing to adequately explain the reasons and bases for its finding that the April 2015 VA examination report was adequate. The Board also notes that a February 2016 rating decision denied service connection for posttraumatic stress disorder (PTSD) and mental stress. The Veteran filed a timely notice of disagreement (NOD) in March 2016. However, the record shows that the RO has not issued a SOC addressing that issue. Accordingly, the Board is required to take jurisdiction over that issue for the limited purpose of remanding to direct the issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Lastly, in August 2017, the Veteran filed several statements by friends and family asserting that disabilities related to his active duty service had grown worse and was the reason he was unable to work. As such, a claim for a TDIU has been raised by the record and is part of the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND After examining the record, the Board finds that a remand is necessary and that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A, and to afford the Veteran adequate VA examinations. Barr v. Nicholson, 21 Vet. App. 303 (2007). As noted above, the JMR found the Board's September 2016 decision failed to provide an adequate statement of reasons or bases for finding that all post-service medical records had been obtained as the record was unclear whether any records might be missing, or whether proper notice of any missing or unavailable records was provided to the Veteran. This case was previously remanded by the Board in November 2014. The Board requested the RO to obtain and associate with the claims file all treatment records from CAVHS dating from May 1975 to the present, and that all efforts should continue to obtain such records until it was reasonably certain they did not exist or that further efforts to obtain them would be futile. An April 2015 report of general information shows that there were no additional CAPRI records prior to 2000 and that all available records were uploaded into VBMS. A May 2015 letter from CAVHS to VA noted that a determination had been made to disclose the information and stated "[t]his is all we have." However, a June 2015 medical administration profile shows the Veteran had 2 volumes of CAVHS medical records. The first volume was noted as missing and the second volume was noted as located in the file room. Medical records received by the RO show that various CAVHS records were provided including radiological studies dating to 1988 and medical package information dating to February 2015. The record does not show that further efforts were made to obtain the missing volume of medical records. Additionally, the Veteran was not provided with notification of the missing records or provided with the opportunity to submit any missing medical records in his possession. See Cuevas v. Principi, 3 Vet. App. 542 (1992). Accordingly, additional efforts should be made to obtain any outstanding medical records related to the claims on appeal. 38 U.S.C. § 5103A (2012). 1. Increased Rating/Right Knee The JMR also found that the Board's September 2016 decision failed to provide an adequate statement of reasons or bases for finding that the April 2015 VA right knee examination report and opinion was adequate. The November 2014 remand specifically instructed the examiner to report the ranges of right knee flexion and extension in degrees and to provide any additional loss in range of motion (ROM) due to any weakened movement, excess fatigability, incoordination, flare-ups and/or pain. The Board also noted that some speculation/conjecture on the examiner's part might be necessary and that reasons for each opinion given should be provided. A review of the April 2015 VA examination report shows the examiner determined that pain, weakness, fatigability and incoordination significantly limited functional ability with repeated use over a period of time. However, the examiner noted that he was unable to provide an estimate in terms of ROM without resorting to conjecture. No further explanation from the examiner was provided. VA's duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d)(1) (2012); 38 C.F.R. § 3.159(c)(4) (2017). The medical examination provided must be thorough and contemporaneous and consider prior medical examination and treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds the April 2015 VA examination report inadequate and that another VA examination is necessary to adjudicate the increased rating claim on appeal. 2. Service Connection Claims Further, the JMR found that the Board's September 2016 decision failed to provide an adequate statement of reasons or bases for finding that the April 2015 VA examination reports with regard to the service connection claims on appeal complied with the terms of the November 2014 remand directives. The Board notes that the remand directives specifically instructed the examiner to acknowledge and consider the Veteran's reports of symptoms and treatment history in formulating any opinion rendered. If the Veteran's reports regarding symptoms or continuity of symptoms since service were rejected, the examiner was further instructed to provide a reason for doing so. With regard to the cervical spine, lumbar spine, and head injury/headache service connection issues on appeal, the Board notes that the Veteran had asserted symptoms since an in-service motor vehicle accident (MVA). In addition, the Veteran's April 2012 VA Form 9, Substantive Appeal, shows that he asserted his cervical and lumbar spine disabilities had been problematic since discharge from service. Further, during his June 2014 Board hearing, the Veteran testified that since his in-service MVA, he had a lot of issues including headaches in additional to his cervical and lumbar spine. The Veteran also testified that his headaches began during service and that they had continued since service. Lastly, the Veteran testified that he was told by VA and private physicians that his left knee disability resulted from overcompensation due to his service-connected right knee disability. However, a review of the April 2015 VA examination reports show that with regard to the service connection issues on appeal the examiner did not consider either the Veteran's reports of etiology or his reports of continuity of symptomatology since service. Instead, the examiner based his negative etiological opinions on a lack of documented treatment for chronic conditions for a period of time following service. Accordingly, the Board finds the April 2015 VA cervical spine, lumbar spine, left knee and head injury/headache examination reports did not comply with the November 2014 remand directives, and, thus, must be remanded for corrective action. Thus, as to all issues addressed in the Remand section above, the Board notes that compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand). With regard to the service connection claim for right wrist disability, the Board notes that the VA examiner determined that a current right wrist disability did not exist. Thus, any discussion of continuity of symptomatology of a determined non-existent right wrist disability would have been rendered moot. However, as noted above, further development of the Veteran's medical record is being conducted, including searching for a missing volume of VA medical records. Accordingly, if the search yields additionally medical records, and such records evidence the existence of a right wrist disability during the pendency of the appeal, then another VA examination will be necessary to properly adjudicate that issue on appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he/she files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). Lastly, entitlement to a TDIU is inextricably intertwined with the Veteran's claims on appeal. Accordingly, the case is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Obtain any outstanding VA treatment records identified by the Veteran, including the missing volume of medical records from CAVHS. Also, make reasonable requests for any non-VA records for which the Veteran provides sufficient identifying information and the necessary release form. If any records cannot be obtained after appropriate attempts, issue a formal finding of unavailability and notify the Veteran of the attempts and outcomes, and allow him an opportunity to provide the missing records. 3. After completion of steps one and two above, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected right knee disability as well as the nature and etiology of his left knee disability. The examiner should review pertinent documents in the Veteran's claims file and this Remand in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct range of motion studies for both the right and left knee, and assess any functional impairment due to such factors as pain and weakness, and express this functional impairment in terms of further loss of ROM. The examiner should test the ROM in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or is unable to provide additional loss of motion in terms of degrees of ROM, he or she should clearly explain why that is so. With regard to any diagnosed left knee disability, the examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed left knee disability is related to the Veteran's active service? The examiner must consider the medical records and lay statements. (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed left knee disability was caused or chronically worsened by a service-connected disability, including right knee disability? The examiner must consider the medical records and lay statements. If the examiner rejects the Veteran's reports regarding symptoms or a continuity since service, the examiner must provide a reason for doing so. The examiner must provide a full rationale for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. After completion of steps one and two above, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed cervical spine, lumbar spine and head injury/headache disability(ies). The examiner should review the entire claims file, including this Remand. All indicated studies should be completed. The examiner should provide the following opinions: 1. Cervical Spine Is it at least as likely as not (50 percent or greater probability) that any diagnosed cervical spine disability is etiologically related to the Veteran's active service? The examiner must consider the medical records and lay statements. If the examiner rejects the Veteran's reports regarding symptoms or a continuity since service, the examiner must provide a reason for doing so. 2. Lumbar Spine Is it at least as likely as not (50 percent or greater probability) that any diagnosed lumbar spine disability is etiologically related to the Veteran's active service? The examiner must consider the medical records and lay statements. If the examiner rejects the Veteran's reports regarding symptoms or a continuity since service, the examiner must provide a reason for doing so. 3. Head Injury/Headache (a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed head injury/headache disability(ies) is etiologically related to the Veteran's active service? The examiner must consider the medical records and lay statements. If the examiner rejects the Veteran's reports regarding symptoms or a continuity since service, the examiner must provide a reason for doing so. The examiner must provide a comprehensive rationale for any opinion provided. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 5. If, and only if, medical records added to the claims file in compliance with steps one and two above and/or during the pendency of the appeal evidence a current right wrist disability, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of such disability. The examiner should review the entire claims file, including this Remand. All indicated studies should be completed. The examiner should provide the following opinions: Is it at least as likely as not (50 percent or greater probability) that any diagnosed right wrist disability is etiologically related to the Veteran's active service? The examiner must consider the medical records and lay statements. If the examiner rejects the Veteran's reports regarding symptoms or a continuity since service, the examiner must provide a reason for doing so. The examiner must provide a comprehensive rationale for any opinion provided. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 6. Issue a SOC to the Veteran for his service connection claim for an acquired psychological disorder, to include PTSD and mental stress. The Veteran should be given the appropriate opportunity to respond to the SOC. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of those issues following the issuance of the SOC unless he perfects his appeal. 7. Then, readjudicate the claims remaining on appeal, including the claim for a TDIU. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the case to the Board, if otherwise in order. The appellant 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). 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 (2012). _________________________________________________ Thomas H. O'Shay 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).