Citation Nr: 18141476 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-04 061 DATE: October 10, 2018 REMANDED Entitlement to service connection for a bilateral eye disorder is remanded. Entitlement to a disability rating in excess of 20 percent for lumbosacral strain, to include whether a separate rating is warranted for radiculopathy of the left lower extremity, and/or radiculopathy of the right lower extremity, is remanded. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral pain syndrome with minimal degenerative changes, to include whether a separate rating is warranted for instability, is remanded. Entitlement to an initial compensable evaluation for left knee limitation of extension is remanded. Entitlement to an effective date earlier than August 17, 2011, for the grant of a separate noncompensable evaluation for left knee limitation of extension is remanded. Entitlement to a disability rating in excess of 10 percent for right knee tendonitis with early degenerative changes is remanded. Entitlement to a disability rating in excess of 10 percent for right knee instability with anterior cruciate ligament (ACL) elongation is remanded. Entitlement to an initial compensable evaluation for right knee limitation of extension is remanded. Entitlement to an effective date earlier than August 17, 2011, for the grant of a separate noncompensable evaluation for right knee limitation of extension is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected lumbosacral strain, left knee disabilities, and/or right knee disabilities, is remanded. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected lumbosacral strain, left knee disabilities, and/or right knee disabilities, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from November 1981 to July 1997. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in March 2013 and February 2015. As indicated above, the issues on appeal include the Veteran’s increased rating claims for his lumbar spine and left knee disabilities. After adjudicating these claims in the March 2013 rating decision, the record reflects that the February 2015 rating decision separately denied entitlement to service connection for left knee instability, left lower extremity radiculopathy, and right lower extremity radiculopathy. However, the question of whether the Veteran is entitled to separate evaluations for these disorders is already contemplated by his increased rating claims for his lumbar spine and left knee disabilities. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1), Diagnostic Code; VAOPGCPREC 23-97; VAOPGCPREC 9-98; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Moreover, the Veteran’s representative does not dispute this fact. See February 2016 Notice of Disagreement. Consequently, the Board has characterized the Veteran’s increased rating claims as noted above. Regarding the Veteran’s service connection claim for an eye disorder, the record reflects that a May 1999 rating decision initially denied his service connection claim for astigmatismus myopicus and amblyopia. The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. In a subsequent May 2005 decision, the RO declined to reopen the Veteran's service connection claim for astigmatismus myopicus and amblyopia. The Veteran was similarly notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. However, the record does not show that the Veteran’s DD Form 214, which is now of record, was associated with the claims file at the time of these prior rating decisions. The Veteran had previously asserted that his current eye disorders were related to his 15 years of service and the duties associated with his military occupational specialty (MOS), that had an associated MOS code of 75H3P. See July 1998 Claim. The Veteran reported that he was sometimes required to work with a computer screen throughout the day. The Veteran’s DD 214 reveals that his MOS was personnel management specialist, MOS code of 75C3P, and the document indicates that the Veteran worked within this MOS for approximately 15 years. In addition, the DD Form 214 reflects that the Veteran received training in a tactical Army combat computer system course. Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). Thus, new and material evidence is not needed to reopen a previously denied claim when relevant personnel records and/or any other relevant service department records are received after a prior final denial. The claim is instead reviewed on a de novo basis. In light of the relevant official service department records received after the May 2005 rating decision, the Veteran's service connection claim for astigmatismus myopicus and amblyopia will be reviewed on a de novo basis. As the record reflects that the Veteran has received diagnoses for different eye disorders during the appeal period, the Board has expanded the Veteran's service connection claim to include all bilateral eye disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for a bilateral eye disorder is remanded. Regarding the Veteran’s service connection claim for a bilateral eye disorder, the record shows that he has not been provided with a VA medical opinion in relation to his claim. As noted above, the Veteran contends that his eye disorders are related to his work with computers during service. See July 1998 Claim. He reported that he did not have any eye complaints prior to service, but he developed worsening vision as a result of his in-service activities. The Veteran has received diagnoses for different eye disorders, including amblyopia, myopic astigmatism with presbyopia, immature congenital cataracts, blepharitis with trace superficial punctate keratitis, and meibomianitis. See February 1999 VA examination, March 2011 VA treatment record; November 2014 VA treatment record. The record also shows that myopic astigmatism was noted during service. See September 1989 STR. In terms of the diagnosed astigmatism, the Board notes that refractive errors of the eyes are not diseases or injuries within the meaning of applicable law and regulations for VA compensation purposes. 38 C.F.R. § 3.303(c). Service connection for such a defect may only be granted for additional disability due to a disease or injury superimposed upon a defect during military service. VAOPGCPREC 82-90 (July 18, 1990). As the Veteran’s statements indicate that he experienced worsening eyesight during service, it is unclear whether there a superimposed disease or injury resulting in additional disability; or if his other diagnosed eye disorders are related to service. Under these circumstances, the Board finds that a remand is necessary to provide the Veteran with a VA examination and medical opinion to determine the etiology of the disorders discussed above. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that when the medical evidence is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions). The Board also notes that although the Veteran’s cataracts were described as congenital in a March 2011 VA treatment record, the record does not indicate whether they are considered a congenital defect or disease. Consequently, the examiner should clarify this question on remand. 2. Entitlement to a disability rating in excess of 20 percent for lumbosacral strain, to include whether a separate rating is warranted for radiculopathy of the left lower extremity, and/or radiculopathy of the right lower extremity; entitlement to a disability rating in excess of 10 percent for left knee patellofemoral pain syndrome with minimal degenerative changes, to include whether a separate rating is warranted for instability; entitlement to an initial compensable evaluation for left knee limitation of extension; entitlement to an effective date earlier than August 17, 2011, for the grant of a separate noncompensable evaluation for left knee limitation of extension; entitlement to a disability rating in excess of 10 percent for right knee tendonitis with early degenerative changes is remanded; entitlement to a disability rating in excess of 10 percent for right knee instability with ACL elongation is remanded; entitlement to an initial compensable evaluation for right knee limitation of extension; entitlement to an effective date earlier than August 17, 2011, for the grant of a separate noncompensable evaluation on for right knee limitation of extension; and entitlement to a TDIU are remanded. In an August 2015 statement, the Veteran’s representative reported that the Veteran had been granted entitlement to Social Security Administration (SSA) benefits largely as a result of his service-connected disabilities. Although the representative submitted a copy of the SSA decision, the complete records associated with that determination are not included in the claims file. In addition, it does not appear that the AOJ has attempted to obtain these records. VA's duty to assist specifically includes requesting information from other Federal departments or agencies. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1323 (Fed. Cir. 2010). As these records appear to be relevant to the Veteran's increased rating claims, earlier effective date claims, and claim for a TDIU, the Board finds that they should be obtained on remand. The Veteran’s representative has also asserted that the most recent VA examinations of the lumbar spine and bilateral knees from May 2017 are inadequate. See June 2017 VA Form 9. During the May 2017 VA examination of the lumbar spine, the examiner stated that the Veteran did not have objective evidence of radiculopathy in the bilateral lower extremities, and the Veteran did not have radicular pain or any other signs or symptoms of radiculopathy. However, the representative indicated that the examiner’s conclusion did not adequately address the Veteran’s report that his back pain radiated to his legs, and he experienced difficulty walking and standing for long periods. Regarding the knees, the record reflects that the May 2017 VA examination was scheduled after the Veteran’s representative reported that the severity of the Veteran’s bilateral knee disabilities had significantly worsened since his February 2013 VA examination. See August 2015 Statement; Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). However, the May 2017 examiner stated that the purpose of the examination was to evaluate the current status of the left knee disability. As such, it appears that no medical history was obtained for the right knee. In terms of the medical history for the left knee, the representative contends that the examiner’s finding that the Veteran did not experience flare ups of his left knee disability is inconsistent with the Veteran’s report that his left knee pain increased if he went up or down frequently. Based on the foregoing, the Board finds that the Veteran should be provided with additional VA examinations for his bilateral knee and lumbar disabilities that include a complete medical history and adequately address all relevant symptoms reported by the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Regarding the Veteran’s claim for a TDIU, the record reflects that he has not yet completed a Veteran's Application for Increased Compensation Based on Unemployability, VA Form 21-8940. Thus, the AOJ should request that he do so upon remand. In addition, the Veteran’s claim for a TDIU is inextricably intertwined with the increased rating claims being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, consideration of entitlement to a TDIU must be deferred pending adjudication of the Veteran's claims for an increased evaluation. 3. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected lumbosacral strain, left knee disabilities, and/or right knee disabilities; and entitlement to service connection for a right hip disorder, to include as secondary to service-connected lumbosacral strain, left knee disabilities, and/or right knee disabilities, are remanded. The AOJ has not obtained a VA medical examination and opinion that addresses the Veteran’s service connection claims for left and right hip disorders. The Veteran’s VA treatment records reflect that he has current diagnoses for bilateral hip degenerative osteoarthrosis and right hip avascular necrosis. See VA treatment records dated in March and April of 2017. In addition, the representative asserted that the Veteran’s right and left hip disorders are secondary to his bilateral knee and lumbar spine disabilities. See August 2015 Statement. The representative indicated that the abnormal gait and spinal misalignment associated with these disabilities have negatively affected the Veteran’s hips. The Board finds that this evidence meets the low threshold as set forth in McLendon to secure a VA medical examination and opinion. See McLendon, 20 Vet. App. at 83-86. Further, the Board is prohibited from relying on its own unsubstantiated medical judgment in the resolution of a claim. See Colvin, 1 Vet. App. at 175. The matters are REMANDED for the following action: 1. Obtain a copy of any decision to grant or deny SSA disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral eye disorder, knee disabilities, lumbar spine disability, and right and left hip disorders. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include records from the John D. Dingell VA Medical Center, Detroit, Michigan dated since April 2017. 3. Provide the Veteran with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and a VA Form 21-4198 (Request for Employment Information in Connection with Claim for Disability Benefits), and ask him to complete and return these forms. 4. After the preceding development in paragraphs 1 through 3 is completed, schedule a VA examination to determine the nature and etiology of any left and/or right eye disorders that may be present. 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, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. First, the examiner should clearly identify all current left and/or right eye disorders. The examiner should specifically indicate whether the Veteran has amblyopia, myopic astigmatism with presbyopia, immature congenital cataracts, blepharitis with trace superficial punctate keratitis, and meibomianitis. If not, the examiner should address the prior diagnoses of record and explain why such a diagnosis is not warranted. (a) For each current left and/or right eye disorder, the examiner should explain whether it is type of refractive error, another type of congenital defect, or a congenital disease. The examiner should note that a disease generally refers to condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. (b) For each disorder that is determined to be a refractive error and/or congenital defect, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury that occurred during service and resulted in additional disability. (c) For each disorder that is determined to be a congenital or developmental disease, opine as to whether there is clear and unmistakable (undebatable) evidence that the disorder both (i) preexisted the Veteran's entry into active service, and (ii) did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran's active service. (d) For each disorder that is not congenital and/or did not preexist service, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during active service or is otherwise related to active service. 5. After completing the preceding development in paragraphs 1 through 3, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his lumbosacral 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 and to comment on the severity of the Veteran's service-connected disability. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. 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 lumbosacral strain under the rating criteria. In particular, the examiner should provide the range of motion in degrees and test the range of motion in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) 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 why this is so. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including limitation of motion) due to these factors. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. In this regard, even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffers during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why he or she could not do so. The examiner must also indicate whether a diagnosis of intervertebral disc syndrome is warranted, and if not, should provide a fully reasoned explanation as to why such a diagnosis is not warranted. The examiner must indicate whether the Veteran has incapacitating episodes due to intervertebral disc syndrome. For VA rating purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If the Veteran experiences incapacitating episodes, the examiner must indicate the approximate number of weeks in the last year the Veteran has experienced incapacitating episodes. The examiner must also indicate whether the Veteran has any neurological disability as a result of his lumbosacral strain. If so, the examiner should indicate the nerve or nerves affected, whether the neurological symptoms are better described as paralysis, neuritis, or neuralgia, and describe the severity of the neurological symptoms. If the Veteran reports having radicular-type symptoms that are determined to not be due to radiculopathy, please provide a rationale. The examiner should also state whether there are any scars related to the Veteran's lumbosacral strain. If so, he or she should provide the findings necessary under the rating criteria for scars. 6. After completing the preceding development in paragraphs 1 through 3, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his right and left knee disabilities. 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 and to comment on the severity of the Veteran's service-connected disability. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. 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 right and left knee disabilities under the rating criteria. In particular, the examiner should provide the range of motion in degrees and test the range of motion in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) nonweight-bearing. This testing must be conducted for both the joint in question and any paired joint. 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 why this is so. The examiner should also indicate whether there whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion to the joint; or, symptomatic removal of semilunar cartilage. He or she should additionally address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The examiner should further state whether there is any 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 limitation of motion) due to these factors. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. In this regard, even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffers during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why he or she could not do so. 7. After the preceding development in paragraphs 1 through 2 is completed, schedule a VA examination to determine the nature and etiology of any left or right hip disorder that may be present. 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, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. First, the examiner should clearly identify all current left and/or right hip disorders. The examiner should specifically indicate whether the Veteran has bilateral degenerative osteoarthrosis and right hip avascular necrosis. If not, the examiner should address the prior diagnoses of record and explain why such a diagnosis is not warranted. For each identified disorder, provide an opinion as to the following questions: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during active service, manifested within one year of the Veteran’s discharge from active service, or is otherwise related to active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused or aggravated by the Veteran’s service-connected left knee, right knee, and/or lumbar spine disabilities. 8. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins