Citation Nr: 1805159 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-22 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a left knee disability, including as due to a service-connected left ankle disability. 2. Entitlement to service connection for a right knee disability, including as due to a service-connected left ankle disability. 3. Entitlement to service connection for a low back disability, including as due to a service-connected left ankle disability. 4. Entitlement to service connection for a right ankle disability, including as due to a service-connected left ankle disability. 5. Entitlement to a disability rating greater than 30 percent for a left ankle disability. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from October 1967 to October 1971, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied, in pertinent part, the Veteran's claim of service connection for a right ankle disability, including as due to a service-connected left ankle disability. The Veteran disagreed with this decision in August 2006. He perfected a timely appeal in November 2015. This matter is next on appeal from an October 2009 rating decision in which the RO assigned a higher 30 percent rating effective June 26, 2009, for the Veteran's service-connected left ankle disability. The Veteran disagreed with this decision in February 2010. He perfected a timely appeal in August 2010. (The Board notes parenthetically that, because the Veteran's increased rating claim for a left ankle disability was considered as part of a separate appeal stream where an appeal was perfected in 2009, this appeal was assigned the same 2009 docket date.) This matter next is on appeal from a November 2013 rating decision in which the RO denied, in pertinent part, the Veteran's claims of service connection for a left knee disability, a right knee disability, and for a low back disability, each including as due to a service-connected left ankle disability. The Veteran disagreed with this decision in October 2014. He perfected a timely appeal in November 2015. The Board notes here that the RO essentially concluded in the November 2013 rating decision that the August 2006 rating decision had become final with respect to the denial of the Veteran's service connection claim for a right ankle disability, including as due to a service-connected left ankle disability, and reopened this claim and denied it on the merits. In doing so, the RO appears to have overlooked the Veteran's August 2006 letter essentially disagreeing with the denial of this claim in the rating decision issued earlier that same month. See 38 C.F.R. § 20.302(a) (2017). Having reviewed this correspondence, the Board concludes that the Veteran's service connection claim for a right ankle disability, including as due to a service-connected left ankle disability, has been pending since he initiated his appeal of the August 2006 rating decision later that same month. The Veteran also reasonably believes that his appeal includes a service connection claim for a right ankle disability, including as due to a service-connected left ankle disability. Accordingly, the Board finds that it has jurisdiction over this claim and can adjudicate it de novo (and not on the basis of new and material evidence). See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (discussing jurisdictional requirements in VA appeals). In April 2013, the Board remanded, in pertinent part, the Veteran's claims for a disability rating greater than 30 percent for a left ankle disability and for a TDIU to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's April 2013 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In October 2014, the Board denied the Veteran's claims for a disability rating greater than 30 percent for a left ankle disability and for a TDIU. The Veteran, through an attorney, and VA's Office of General Counsel appealed the Board's October 2014 decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (Joint Motion). The Court granted the Joint Motion in August 2015. In December 2015, the Board remanded all of the currently appealed claims to the AOJ. The Board notes that it remanded the Veteran's service connection claims for a left knee disability, a right knee disability, a low back disability, and for a right ankle disability, each including as due to a service-connected left ankle disability, in December 2015 in order to schedule the Board hearing which he had requested. The Veteran's service representative subsequently withdrew the Veteran's Board hearing request in November 2017. See 38 C.F.R. § 20.704 (2017). Unfortunately, as is explained below in greater detail, the appeal is REMANDED again to AOJ. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he incurred a left knee disability, a right knee disability, a low back disability, and a right ankle disability during active service. He alternatively contends that his service-connected left ankle disability caused or aggravated (permanently worsened) his bilateral knee, low back, and right ankle disabilities. He also contends that his service-connected left ankle disability is more disabling than currently evaluated. He finally contends that his service-connected disabilities, alone or in combination, preclude his employability, entitling him to a TDIU. With respect to the Veteran's service connection claims for a left knee disability, a right knee disability, and for a low back disability, each including as due to a service-connected left ankle disability, the Board notes initially that a review of the record evidence indicates that he has been diagnosed as having disabilities of the bilateral knees and low back. The Board next notes that VA examinations of the Veteran's spine and knees conducted in October 2013 are insufficient for VA adjudication purposes. See 38 C.F.R. § 4.2 (2017). For example, the Veteran's October 2013 VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) contains an inadequate rationale for the VA examiner's negative nexus opinion. This examiner specifically found the absence of records to be persuasive support for his opinion. The Board observes in this regard that it is well-settled that the absence of contemporaneous records, alone, does not preclude granting service connection for a claimed disability. The VA examiner who conducted the Veteran's October 2013 VA back conditions DBQ also did not address whether the diagnosed low back disability was related to active service on a direct service connection basis. Similarly, the VA examiner who conducted the Veteran's October 2013 VA knee and lower leg conditions DBQ did not provide an opinion concerning the contended etiological relationship between either of the Veteran's currently diagnosed knee disabilities and active service. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for appropriate examinations to determine the nature and etiology of his left knee, right knee, and low back disabilities. With respect to the Veteran's service connection claim for a right ankle disability, including as due to a service-connected left ankle disability, the Board notes that, although he has been diagnosed as having a right ankle disability, to date, he has not been scheduled for appropriate examination to determine the nature and etiology of this disability. The Board observes that VA's duty to assist includes scheduling an examination where necessary. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination to determine the nature and etiology of any current right ankle disability. With respect to the Veteran's claims for a disability rating greater than 30 percent for a left ankle disability and for a TDIU, the Board notes that, in its December 2015 remand, it directed that the AOJ schedule the Veteran for appropriate examination to determine, in pertinent part, the functional impact of his service-connected left ankle disability on his employability. Unfortunately, a review of the September 2016 VA ankle conditions DBQ shows that the VA examiner who conducted this examination did not discuss the functional impact of the Veteran's service-connected left ankle disability on his employability. In Stegall, the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board in October 2017 without complying with the December 2015 remand instructions. Given this error, another remand is required of the Veteran's claims for a disability rating greater than 30 percent for a left ankle disability and for a TDIU. The Board next notes that, following its December 2015 remand, the Court issued a decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the left ankle, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia 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. Id.; see also 38 C.F.R. § 4.59. A review of the record evidence shows that the Veteran's September 2016 VA ankle conditions DBQ did not comply with Correia. For example, there is no indication in this examination report whether the left ankle range of motion obtained at that examination is active or passive or in weight-bearing or non-weight-bearing. Accordingly, and because the Veteran's increased rating claim for a left ankle disability is being remanded under Stegall (as discussed above), the Board finds that, on remand, the Veteran should be scheduled for updated VA examination to determine the current nature and severity of his service-connected chronic left ankle disability. As noted in the Board's December 2015 remand, adjudication of the Veteran's increased rating claim for a left ankle disability likely will impact adjudication of his TDIU claim. Similarly, adjudication of the additional service connection claims also being remanded by the Board likely will impact adjudication of the TDIU claim. Accordingly, the Board finds that all of these claims are inextricably intertwined and adjudication of the Veteran's TDIU claim must be deferred again. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The AOJ also should attempt to obtain the Veteran's updated treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA and private treatment records which have not been obtained already. 2. Schedule the Veteran for examination to determine the nature and etiology of any left knee disability or any right knee disability, if possible before a different VA clinician than the clinician who conducted the October 2013 VA knee and lower leg conditions DBQ. The claims file should be provided for review. The examiner is asked to state opinions as to the following: a. whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a left knee disability, if diagnosed, is related to active service or any incident of service. b. whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a right knee disability, if diagnosed, is related to active service or any incident of service. c. whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected left ankle disability (i) caused or (ii) aggravated (permanently worsened) a left knee disability, if diagnosed. d. whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected left ankle disability (i) caused or (ii) aggravated (permanently worsened) a right knee disability, if diagnosed. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. 3. Schedule the Veteran for examination to determine the nature and etiology of any low back disability, if possible before a different VA clinician than the clinician who conducted the October 2013 VA back (thoracolumbar spine) conditions DBQ. The claims file should be provided for review. The examiner is asked to state opinions as to the following: a. whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a low back disability, if diagnosed, is related to active service or any incident of service. b. whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected left ankle disability (i) caused or (ii) aggravated (permanently worsened) a low back disability, if diagnosed. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. 4. Schedule the Veteran for examination to determine the nature and etiology of any right ankle disability and the current nature and severity of his service-connected left ankle disability. The claims file should be provided for review. The examiner is asked to state opinions as to the following: a. whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a right ankle disability, if diagnosed, is related to active service or any incident of service. b. whether a service-connected left ankle disability (i) caused or (ii) aggravated (permanently worsened) a right ankle disability, if diagnosed. c. The examiner further is asked to state the functional impact of the Veteran's service-connected left ankle disability on his employability. In order to comply with the Court's decision in Correia, the examiner must test and record the range of motion for BOTH ankles in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then he or she should clearly explain why that is so. 5. Thereafter, readjudicate the appeal. The appellant 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 2012). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).