Citation Nr: 18140740 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-19 595A DATE: October 5, 2018 ORDER A timely substantive appeal was filed with respect to the June 2014 rating decision; the appeal is granted. REMANDED 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to a higher initial evaluation than 10 percent for a service-connected right knee disability is remanded. 3. Entitlement to a higher initial rating than 20 percent for a service-connected cervical spine disability is remanded. 4. Entitlement to a compensable evaluation for service-connected nephrolithiasis is remanded. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT Resolving all doubt in the Veteran’s favor, the Board finds that the May 2016 substantive appeal was filed in a timely manner. CONCLUSIONS OF LAW A timely substantive appeal was filed with respect to the June 2014 rating decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.302 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1983 to March 1986, May 1988 to July 1993, from May 1996 to September 1996, from July 1998 to March 1999, and June 1999 to September 2013. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran raised the issue of TDIU due to his cervical spine disability in a May 2015 notice of disagreement. Therefore, the issue of entitlement to TDIU is before the Board. As an aside, the Veteran did not appeal the issue of a higher evaluation for a hemorrhoid disability in his May 2016 substantive appeal. The Veteran stated that he only wanted to appeal the issues of entitlement to service connection for a left knee disability, a higher evaluation for a right knee disability, a higher evaluation for nephrolithiasis, and higher evaluation for cervical spine disability. The Veteran submitted another substantive appeal in March 2017 for the issue of the timeliness of the May 2016 substantive appeal. Although the Veteran noted that he wanted to appeal all of the issues in the statement of case, the only issue listed in the most recent SOC was timeliness of the substantive appeal. For these reasons, the Board does not find that the May 2016 substantive appeal included an appeal for a higher evaluation for hemorrhoids and the March 2017 substantive appeal was not a timely appeal as to this issue. Therefore, the issue of a higher evaluation for hemorrhoids has not been appealed and is not before the Board. Timeliness of substantive appeal The Veteran filed a notice of disagreement with the June 2014 rating decision in May 2015. The AOJ issued a statement of the case in March 2016. The Veteran emailed his representative a copy of a completed substantive appeal on May 12, 2016. The Veteran’s representative mailed the substantive appeal which arrived on May 31, 2016. The Veteran contends that his substantive appeal should be found timely as it was emailed and signed prior to 60 days following the issuance of the statement of the case and that the representative should have immediately filed the substantive appeal and did not. The United States Court of Appeals for Veterans Claims has held that section 7105(d)(3) is not a jurisdictional statute, that VA may waive its objection to an untimely Substantive Appeal, and that the Board may properly adjudicate a matter when there has been such a waiver. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Resolving all doubt in the Veteran’s favor, the Board waives any objection to an untimely VA Form 9. REASONS FOR REMAND As the Board determined that a timely substantive appeal was filed with the June 2014 rating decision, the issues of entitlement to service connection for a left knee disability, a higher evaluation for a right knee disability, a higher evaluation for nephrolithiasis, and higher evaluation for cervical spine disability are in remand status. However, prior to adjudication of the issues, the Board finds that further development is needed. The Veteran claims that his left knee disability is related to his military service. In his May 2016 substantive appeal, he reported that he had severe pain in his left knee and limited range of motion. He explained that he repeatedly injured his knee due to parachute operations and load bearing exercises that were a fundamental part of his military career. He reported spending over 192 months of active parachute jumping duty. The Veteran was only afforded an examination for his right knee disability. No diagnosis was provided for his left knee diagnosis and no opinion was obtained as to whether any current left knee disability was related to his military service. As the Veteran is now reporting severe pain in his left knee and limited range of motion, the Board finds that an examination is needed to provide the current diagnosis for the left knee disability and an opinion as to whether the current diagnosis is related to his military service. While the record contains a May 2014 Knee and Lower Leg Disability Benefits Questionnaire (DBQ) and May 2014 Neck Conditions DBQ, these examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements and pain on weight-bearing testing. The Veteran reported worsening symptoms of his nephrolithiasis in the May 2015 notice of disagreement such as occasional attack of colic which is severe and painful. In his substantive appeal, he also mentioned urinary incontinence and increased frequency and urgency. Given the evidence of worsening since the last examination, a new examination is needed. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Further development and adjudication of the Veteran’s claim for increase may provide evidence in support of his claim for a TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Properly notify the Veteran of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. Ask the Veteran to complete a VA Form 21-4142 for Carolina Family Practice and Sports Medicine or any other facility where he is receiving treatment. Make two requests for the authorized records from Carolina Family Practice and Sports Medicine, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including 192 months of active parachute jumping duty and load bearing exercises. The examiner must opine whether it is at least as likely as not (1) proximately due to service-connected disability, to include service-connected right knee disability, or (2) aggravated beyond its natural progression by service-connected, to include service-connected right knee disability, disability. 4. Schedule the Veteran for an examination of the current severity of his right knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to a right knee disability alone and discuss the effect of the Veteran’s right knee on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected nephrolithiasis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to nephrolithiasis alone and discuss the effect of the Veteran’s nephrolithiasis on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner’s attention is directed to the Veteran’s statements of occasional attack of colic which is severe and painful and reports of urinary incontinence and increased frequency and urgency. 6. Schedule the Veteran for an examination of the current severity of his cervical spine disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to a cervical spine disability alone and discuss the effect of the Veteran’s cervical spine disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. Readjudicate the Veteran’s claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand, including the TDIU claim. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel