Citation Nr: 18141352 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 09-48 910 DATE: October 10, 2018 REMANDED Entitlement to an increased rating for degenerative arthritis of the left knee with a Baker’s cyst, currently evaluated as 10 percent disabling prior to August 13, 2012, is remanded. Entitlement to an increased rating for the residuals of a total left knee arthroplasty, currently evaluated as 30 percent disabling effective from October 1, 2013, is remanded. Entitlement to an increased rating for left ankle strain, currently evaluated as 10 percent disabling, is remanded. Entitlement to an increased rating for carpal tunnel syndrome of the left wrist with hypogeusia of the left thumb, currently evaluated as 30 percent disabling, is remanded. Entitlement to service connection for pain in the left hand, wrist, forearm, elbow, shoulder, neck, and side, to include as secondary to the Veteran’s service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1973 to October 1976. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision. In June 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the Agency of Original Jurisdiction (AOJ). A transcript of that proceeding is associated with the record. In a September 2012 rating decision, the AOJ granted a temporary total evaluation for a total left knee arthroplasty, effective from August 13, 2012. Thereafter, a 30 percent evaluation was assigned, effective from October 1, 2013. Nevertheless, as the staged 10 percent and 30 percent evaluations do not represent the highest possible benefit, the issue remains in appellate status as recharacterized above. AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. In May 2013 and January 2018, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. The Board notes that the Veteran was previously represented by David Huffman, a private attorney. See May 2013 VA Form 21-22a, Appointment of Individual as Claimant’s Representative. In November 2014, the AOJ informed the Veteran that Mr. Huffman is no longer accredited to represent claimants in claims before VA and that he could seek other representation or proceed without representation. The letter also advised the Veteran that, unless he informed VA otherwise, the AOJ would continue to process his claims. To date, the Veteran has not designated another individual or Veterans Service Organization as his representative. Therefore, the Board recognizes the Veteran as proceeding pro se in this appeal. The Veteran was afforded VA knee, ankle, and peripheral nerve examinations in March 2018 in connection with his increased rating claims. However, the examination reports did not include range of motion testing on passive motion of the knees, ankles, and wrists, and the examiner did not indicate whether it was possible to provide a retrospective medical opinion for the other VA examinations conducted during the appeal period, as specifically directed by the Board in the January 2018 remand. Therefore, a remand is necessary to obtain additional VA examinations. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders); Correia v. McDonald, 25 Vet. App. 158 (2016); Chotta v. Peake, 22 Vet. App. 80 (2008). With respect to the Veteran’s claim for service connection for pain in the left hand, wrist, forearm, elbow, shoulder, neck, and side, the Board finds that an additional VA medical opinion is necessary to determine whether the Veteran’s left upper extremity, neck, and side pain were aggravated by his service-connected left knee disability. In March 2018, a VA examiner provided a VA medical opinion. However, he did not address the aggravation facet of the secondary service connection claim, as directed by the Board in the January 2018 remand. See 38 C.F.R. § 3.310(a),(b); El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). See also Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should secure any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected carpal tunnel syndrome of the left wrist with hypogeusia of the left thumb. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In particular, he or she should provide an opinion as to whether the paralysis of the left median nerve is complete or incomplete. If the paralysis of the left median nerve is incomplete, the examiner should opine as to whether the disorder is mild, moderate, or severe in nature. The examiner should provide the range of motion of the left and right wrists in degrees on 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, he or she should provide an explanation for this determination in the report. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. In addition, the examiner should address whether range of motion measurements on active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated where not actually measured for the other VA examinations conducted during the appeal period in January 2008, March 2011, and May 2016. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should provide an explanation for this determination in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected recurrent left ankle strain. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s service-connected left ankle disability. In particular, the examiner should provide the range of motion in degrees and test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the right and left ankles. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also indicate whether there is any ankylosis; malunion of the os calcis or astragalus; or, evidence of an astragalectomy. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. In addition, the examiner should address whether range of motion measurements on active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated where not actually measured for the other VA examinations conducted during the appeal period in January 2008, March 2011, and May 2016. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should provide an explanation for this determination in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected left knee disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the left knee disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the right and left knees. In so doing, the examiner should test the Veteran’s range of motion 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, he or she should clearly explain so in the report. The examiner should also comment on whether the Veteran has prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. He or she should also indicate whether the Veteran has intermediate degrees of residual weakness, pain, or limitation of motion and whether there is any ankylosis, loss of extension, or malunion or nonunion of the tibia and fibula. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. In addition, the examiner should address whether range of motion measurements on active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated where not actually measured for the other VA examinations conducted during the appeal period in January 2008 and March 2011 (before the Veteran had a total knee replacement on August 13, 2012) and May 2016 (after the Veteran had a total knee replacement on August 13, 2012). If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should provide an explanation for this determination in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The AOJ should refer the Veteran’s claims folder to a suitably qualified VA examiner for a VA addendum medical opinion as to the nature and etiology of the Veteran’s left upper extremity, neck, and side pain. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay assertions. The examiner should render an opinion as to whether it is at least as likely as not that the Veteran’s left upper extremity, neck, and side pain were aggravated by his service-connected left knee disability. The examiner is advised that the previous May 2016 and March 2018 VA examiners addressed the etiology of the Veteran’s left upper extremity, neck, and side pain based on the causation facet of secondary service connection, but did not address whether his left upper extremity, neck, and side pain were aggravated or permanently worsened by the Veteran’s service-connected left knee disability. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. The AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel