Citation Nr: 1804773 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-22 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for service-connected degenerative joint disease of the lumbar spine (low back disability). 2. Entitlement to an increased rating in excess of 20 percent for service-connected recurrent right knee ligament strain with functional impairment. 3. Entitlement to an increased rating in excess of 10 percent for service-connected osteoarthritic changes of the right knee associated with right knee ligament strain. 4. Entitlement to an increased rating in excess of 10 percent for service-connected bilateral pes planus with left foot plantar fasciitis. 5. Entitlement to service connection for a left knee disability, to include arthritis, and to include as secondary to service-connected disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1984 to June 1990 and from February 6, 1991 to February 8, 1991. These matters come before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that a claim for service connection for left knee arthritis was previously denied by the RO in a January 2001 rating decision. Service treatment records (STRs) were subsequently added to the claims file in September 2012. These records appear to be relevant STRs that existed and had not been associated with the claims file when VA previously decided the claim in January 2001. As indicated in the January 2001 rating decision, the Veteran's then-existing STRs were negative for complaints of, or treatment for, a left knee condition. However, the records obtained in September 2012 include a November 1984 treatment record showing that the Veteran complained of left knee pain and was assessed with LCL strain. As such, the Veteran's original claim will be reconsidered. See 38 C.F.R. § 3.156(c). Because the matter is being remanded, the Board may take jurisdiction over the original claim without prejudice to the Veteran. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010). The issue of entitlement to service connection for insomnia has been raised by the record in the Veteran's November 2011 NOD and an August 2012 statement submitted along with his VA Form 9. Additionally, the issue of entitlement to service connection for a disability manifested by pain in the left rib-cage area and difficulty breathing has been raised in his August 2012 statement. As these issues have not been addressed by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to increased ratings for his low back, right knee ligament strain, right knee osteoarthritis changes, and bilateral pes planus disabilities; and to service connection for a left knee disability. Before a decision can be reached on his claims, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159. Increased Rating: Low Back The Veteran was last afforded a VA back examination in June 2011. Since that time, the Veteran has submitted several statements indicating that his disability has worsened. For instance, as set forth in his November 2011 notice of disagreement (NOD), August 2012 statement submitted with his Form 9, and an August 2017 letter to Congressman Doggett, the Veteran has maintained that he is in extreme and constant pain, which has worsened as the years have progressed. He has also indicated that his back pain has spread down his left hip and into his left buttock. In light of this background, a new VA examination is warranted to determine the current nature and severity of his low back disability. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). Increased Rating: Right Knee The Veteran was last afforded a VA knee examination in June 2011. Of note, there was no sign of instability. The Veteran has subsequently submitted several statements indicating that his disability has worsened. For instance, as set forth in his November 2011 NOD and August 2012 statement submitted with his Form 9, the Veteran has maintained that his right knee "feels like it is going to fall off," and he has indicated that it has "snapped" or "popped" out of place. As such, a new VA examination is warranted to determine the current nature and severity of the Veteran's right knee disabilities. See, e.g., Snuffer, 10 Vet. App. at 402-03. Increased Rating: Bilateral Pes Planus with Left Foot Plantar Fasciitis The Veteran was last afforded a VA foot examination in June 2011. The Veteran has since submitted several statements indicating that his disability has worsened. For instance, as set forth in his November 2011 NOD, August 2012 statement submitted with his Form 9, and an August 2017 letter to Congressman Doggett, the Veteran has maintained that he is in extreme and constant pain, which has worsened as the years have progressed. Accordingly, a new VA examination is warranted to determine the current nature and severity of his foot disabilities. See id. Service Connection: Left Knee The Veteran contends that he is entitled to service connection for a left knee disability as secondary to his service-connected right knee disability. The Veteran was last afforded a VA examination pertaining to his claimed left knee disability in December 2000. He was given a diagnosis of minimal osteoarthritis of the left knee. The examiner could not draw a direct correlation between the Veteran's complaint of left knee pain and his service-connected right knee disability, as there were no biomechanical features indicative of contralateral injury to the left knee, such as a significant history or objective evidence of a limp or gait changes. The examiner did not offer an opinion as to direct service connection. The Veteran was subsequently afforded a VA examination in June 2011 pertaining to his service-connected low back, right knee, and bilateral pes planus disabilities. Of note, the examiner indicated that the Veteran walked with an antalgic gait that was due to low back, knee, and feet pain. Additionally, as indicated above, newly-obtained service treatment records indicate that the Veteran was assessed with left knee LCL strain during service. In light of this history, a new VA examination is warranted that addresses both direct and secondary service connection. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Finally, the Board notes that VA treatment records were last associated with the claims file in September 2012. Based on letters that the Veteran sent to his Congressman, it appears that there are outstanding VA treatment records that might be pertinent to his claims. Therefore, the AOJ should obtain any outstanding VA treatment records on remand. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. In particular, obtain any outstanding treatment records from the South Texas VAMC dated from September 2012 to the present. Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary. If VA attempts to obtain any outstanding records that are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, schedule the Veteran for a VA back examination with an appropriate medical examiner to address the current nature and severity of his service-connected low back disability. The claims folder, including a copy of this remand, must be made available to, and reviewed by, the examiner. The examiner should respond to the following, and a complete rationale for any opinion should be expressed: a) All tests and studies deemed necessary by the examiner should be performed, and the examination report should comply with all appropriate protocols for rating musculoskeletal disabilities of the spine, in addition to any associated neurologic abnormalities. b) The examiner must consider functional loss due to flare-ups, repetitive use, painful motion, weakness, excessive fatigability, lack of endurance, and/or incoordination. To the extent possible, any such determination should be expressed in terms of the estimated loss of range of motion. c) The examiner should state whether the Veteran's back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician, and if so, the frequency and duration of such episodes. d) The examiner should clarify whether the Veteran has signs or symptoms due to radiculopathy, and if so, the examiner should indicate the nerve roots involved, as well as the severity of any radiculopathy and the side(s) affected. The examiner should specifically consider the Veteran's reports indicating radiating pain to his left hip and buttock, as reflected in his November 2011 NOD and August 2012 statement submitted with his VA Form 9. e) The examiner should address all current functional impairment from the Veteran's low back disability, to include any impact on occupational functioning. 3. After completing the development requested in number (1) above, schedule the Veteran for a VA examination with an appropriate medical examiner to address the current severity of his service-connected right knee disability, as well as the nature and etiology of his claimed left knee disability. The claims folder, including a copy of this remand, must be made available to, and reviewed by, the examiner. The examiner should respond to the following, and a complete rationale for any opinion should be expressed: a) The examiner should identify, with specificity, all diagnoses pertaining to the Veteran's claimed left knee disability. b) For each identified left knee disability, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability was caused by, or is otherwise etiologically related to, the Veteran's active military service. In rendering an opinion, the examiner should specifically consider and address the November 1984 STR showing a complaint of left knee pain and an assessment of LCL strain. c) For each identified left knee disability, the examiner should opine as to whether it is at least as likely as not that the disability was caused OR aggravated by a service-connected disability, to specifically include the Veteran's service-connected right knee, low back, and bilateral pes planus with left foot plantar fasciitis disabilities. In rendering an opinion, the examiner should specifically consider and address the December 2000 examination report, which provides that the Veteran did not have biomechanical features indicative of contralateral injury to the left knee (to include a limp or gait changes), and the June 2011 VA examination report, which provides that the Veteran had an antalgic gait due to low back, knee, and feet pain, which are noted above. "Aggravated" for VA purposes means that the condition is permanently worsened beyond its natural progression. If a service-connected disability is found to aggravate a left knee disability, the examiner should identify the percentage of disability that is attributable to the aggravation. See 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. d) Range of motion testing of both knees should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe any associated functional limitations. e) The examiner should specifically offer an opinion as to the impact of any functional loss due to pain during flare-ups, considering all procurable and assembled data, and by obtaining all tests and records that might reasonably illuminate the medical analysis. The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, or functional loss manifestations related to flare-ups. f) The examiner should offer an opinion as to whether there is a history of lateral instability, and if so, should indicate the degree of lateral instability (slight, moderate, or severe). If the examiner finds no history of right lateral instability, he/she should specifically address the Veteran's reports that his right knee has "snapped" or "popped" out of place, as noted above. g) The examiner should address all current functional impairment from the Veteran's service-connected right knee disability, to include any impact on occupational functioning. 4. After completing the development requested in number (1) above, schedule the Veteran for a VA examination with an appropriate medical examiner to address the current severity of his service-connected bilateral pes planus with left foot plantar fasciitis disability. The claims folder, including a copy of this remand, must be made available to, and reviewed by, the examiner. The examiner should respond to the following, and a complete rationale for any opinion should be expressed: a) The examiner should describe all pertinent symptomatology. All tests and studies deemed necessary by the examiner should be performed, and the examination report should comply with all appropriate protocols for rating musculoskeletal disabilities of the feet. b) The examiner should address all current functional impairment from the Veteran's service-connected bilateral pes planus with left foot plantar fasciitis disability, to include any impact on occupational functioning. 5. After completing the development requested above, in addition to any other development deemed necessary by the AOJ, re-adjudicate the Veteran's claims. If any of the benefits sought are not granted in full, furnish the Veteran and his representative an SSOC, and return 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). These claims 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. _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).