Citation Nr: 18143126 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 15-13 847 DATE: October 18, 2018 ORDER Service connection for a disability manifested by left knee stiffness is granted. Restoration of a 20 percent rating from February 1, 2014 to September 25, 2015 for service-connected hemorrhoids is granted. REMANDED Whether new and material evidence has been received to reopen service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a right hip disability, to include as secondary to a right knee disability is remanded. Entitlement to service connection for a low back disability, to include as secondary to a right knee disability is remanded. Entitlement to service connection for a sleep disability is remanded. Entitlement to service connection for a disability manifested by bilateral leg cramps is remanded. Entitlement to higher staged ratings for service-connected impairment of sphincter control, currently rated 0 percent prior to March 11, 2016 and 30 percent from that date, is remanded. FINDINGS OF FACT 1. Service treatment records (STRs) include a separation report of medical history with physician’s notes explicitly documenting knee stiffness and discomfort, a VA examiner diagnosed left knee arthritis in November 2017, and the Veteran has provided competent, credible sworn testimony that her knee stiffness began in service and has been continuous since that time; considering the above, the Board finds the evidence is at least in relative equipoise as to whether presumptive service connection for left knee arthritis based on continuity of symptoms is warranted under 38 U.S.C. § 1112. 2. The record shows that, prior to the rating reduction in November 2013, a 20 percent rating was in effect since 2004 and, therefore, 38 C.F.R. § 3.344 provides that this disability should be considered as “stabilized” and unlikely to improve. 3. Although the Veteran was given the appropriate notice and procedural considerations under 38 C.F.R. § 3.105(e), did not request a hearing in the matter, and has not alleged any procedural defects in the implementation of the reduction in question, the November 2013 reduction was substantively based entirely on a March 2013 VA examination that did not actually include a physical examination; that decision fails to consider competent and credible July 2013 lay statements attesting to persistent bleeding before and after stools, leaking from the rectum, requisite use of stool softeners, incapacitation after passing stools, and pain with bowel movements; and the Veteran subsequently provided competent, credible sworn testimony in May 2018 indicating that initial improvement following an October 2012 hemorrhoidectomy was temporary, as he began “leaking real bad” and had to return to the emergency room, began having fecal incontinence, had to wear adult diapers, and ultimately required intervention at an endoscopy center for impairment of the sphincter muscle. 4. Considering VA’s March 2010 rating decision initially assigned a 20 percent rating for this disability almost entirely based on nearly identical lay reports (e.g., consistent bleeding, taking stool softeners, fecal incontinence, impairment of sphincter control, and discomfort such as itching and burning), the above finding regarding stabilization and likelihood of improvement under 38 C.F.R. § 3.344, and that a subsequent January 2016 rating decision concedes that persistent bleeding, alone, is sufficient to warrant a maximum 20 percent rating under the schedular criteria, the Board finds the evidence is at least in relative equipoise as to whether the improvement noted on March 2013 examination, and relied upon in the November 2013 reduction, did not represent a sustained improvement of his service-connected hemorrhoids and, accordingly, that the reduction in question was improper. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by left knee stiffness have been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. The criteria for restoration of a 20 percent rating for service-connected hemorrhoids from February 1, 2014 to September 25, 2015 have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.105, 3.344, 4.2, 4.10, 4.114 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1986 to October 1989. These matters are before the Board of Veterans’ Appeals (Board) on appeal from November 2013, June 2014, February 2015, August 2015, January 2016, and November 2017 rating decisions. In May 2018, the undersigned took testimony on the matters involving service connection for bilateral leg cramps and left knee stiffness, and restoration of a 20 percent rating for service-connected hemorrhoids. Although the appeal seeking service connection for left knee stiffness was not previously certified to the Board or formally perfected, as the undersigned took testimony on that matter, it is nonetheless now before the Board. The remaining matters are before the Board for the limited purpose of ordering corrective action pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). For the reasons stated above, the Board grants service connection for a disability manifested by left knee stiffness and restoration of a 20 percent rating for service-connected hemorrhoids, and no further discussion of those matters is needed. REASONS FOR REMAND The claims for (1) reopening service connection for an acquired psychiatric disability, (2) service connection for a right hip disability, (3) service connection for a low back disability, (4) service connection for obstructive sleep apnea, and (5) entitlement to higher “staged” initial ratings for service-connected impairment of sphincter control, are remanded. A review of the record shows the Veteran has filed timely August 2014, March 2016, May 2016, and January 2018 correspondences reasonably expressing disagreement with June 2014, February 2015, January 2016, and November 2017 rating decisions, respectively, that, in pertinent part, denied service connection for right hip, low back, and sleep disabilities, higher “staged” ratings for service-connected impairment of sphincter control, and a claim to reopen service connection for an acquired psychiatric disability. However, no statement of the case (SOC) has yet been issued addressing any of those issues. Therefore, corrective action is required pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Entitlement to service connection for a disability manifested by bilateral leg cramps is remanded. The Veteran has not yet been examined to assess his alleged bilateral leg cramps, yet he is competent to report such symptoms and VA treatment records clearly document consistent complaints and treatment for the same. Moreover, STRs note leg cramping in a separation report of medical history. Therefore, the low threshold for determining when a VA examination must be afforded has been met. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an examination by an appropriate physician(s) to determine the nature and etiology of any disability manifested by bilateral leg cramps. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all disabilities manifested by bilateral leg cramps found other than already service-connected disabilities. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. (b.) For each disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include notations of leg cramps therein. The examiner must consider and discuss, as necessary, the competent reports the Veteran has provided of leg cramps that began in service and have persisted since. (c.) For each disability diagnosed, please also opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such is CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY his service-connected right or left knee disabilities. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Issue an appropriate SOC addressing the issues of whether new and material evidence has been received to reopen service connection for an acquired psychiatric disability, service connection for right hip disability, service connection for low back disability, service connection for a sleep disability, and increased ratings for service-connected impairment of sphincter control. The Veteran and his representative must be notified of the means and proper time window for perfecting the appeals and afforded the opportunity to do so. If they do, all perfected appeals must be returned to the Board for further appellate consideration. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel