Citation Nr: 18147860 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-11 306 DATE: November 6, 2018 ORDER Entitlement to a lumbar spine disability, including as secondary to service-connected left knee disability is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for a left knee disability prior to November 2, 2012, and in excess of 30 percent from January 1, 2014, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s lumbar spine disability is proximately due to or the result of his service-connected left knee disability. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability, to include as secondary to service-connected left knee disability, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from November 1997 to November 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2012 and June 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2012 rating decision, the RO granted service connection for degenerative arthritis of the left knee (left knee disability) and assigned a 10 percent disability rating, effective July 3, 2012. In the June 2014 rating decision, the RO denied service connection for a lumbar herniated disc back disability (lumbar spine disability) and assigned a temporary 100 percent disability rating from November 2, 2012, for a left total knee replacement and assigned a 30 percent disability from January 1, 2014. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) in September 2016. A copy of the transcript has been reviewed and associated with the claims file. 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 a service connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, the Veteran noted in an August 2014 statement that he could no longer work as a mechanic due, in part, to his left knee disability. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (“[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU.”). Entitlement to a lumbar spine disability, including as secondary to service-connected left knee disability Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection the evidence must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App 439, 449 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his lumbar spine disability is secondary to his service-connected left knee disability. The Veteran has been assessed with a herniated disc and degenerative disc disease of his lumbar spine. See e.g., 04/18/2014, CAPRI; 06/30/2014, CAPRI. Thus, a present disability has been established by the evidence. The remaining question is whether the Veteran’s lumbar spine disability is related to his service-connected left knee disability. The Veteran underwent a VA examination is April 2014. The VA examiner opined that there was less than a 50 percent probability that his lumbar spine disability was due to his left knee disability given that his knee disability had been longstanding and he noticed his back issues 8 months prior to his back surgery. The Veteran submitted a statement from his treating physician, T.P., D.O., dated in November 2016. Dr. T.P. indicated that she had been treating the Veteran for several years with regard to his back and knee disabilities. She concluded that the Veteran’s back disability was more likely than not related to his knee disability due to the change of his gait in order to compensate for his knee problems. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s lumbar spine disability is related to his service-connected left knee disability. In this regard, the Veteran’s treating physician indicated that the Veteran was forced to change his gait due to his left knee disability, which ultimately caused his back disability. The Veteran’s treatment records confirmed that he had an antalgic gait on the left. See 07/13/2012, Medical Treatment Record- Non-Government Facility, p. 4. The Board acknowledges the negative opinion provided by the April 2014 VA examiner. However, the Board gives little weight to this opinion. In this regard, the examiner concluded that the Veteran’s lumbar spine disability was not related to his knee disability because his knee disability was longstanding. The Board finds error in this reasoning given that the left knee disability would need to pre-date the lumbar spine disability in order for the lumbar spine disability to be proximately due to or the result of his left knee disability. Based on the above evidence, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the evidence is in equipoise and the benefit of the doubt is given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for the Veteran’s lumbar spine disability, to include as proximately due to his service-connected left knee disability, is warranted. 38 C.F.R. §§ 3.102, 3.310(a). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for left knee arthritis prior to November 2, 2012, and in excess of 30 percent from January 1, 2014 is remanded. The Board finds that additional evidentiary development is required prior to adjudicating the claim of an increased rating for a left knee disability. The Veteran was afforded a VA examination to address the severity of his left knee disability in September 2012. While range of motion testing results were provided, there is no indication that both active and passive range of motion testing was conducted. See 38 C.F.R. § 4.59 (2016); Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the examination is insufficient to determine the Veteran’s left knee claim. Furthermore, the Veteran underwent a total knee replacement in November 2012. However, an examination was not performed following this surgery to determine the current severity of his left knee disability. Accordingly, a remand is warranted in order to afford the Veteran an additional VA examination and obtain any updated VA and private treatment records. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). In a statement dated in August 2014, the Veteran indicated that he stopped working as a mechanic due to his lumbar and left knee disabilities. Accordingly, the Board finds that a TDIU claim has been raised by the record in this case. A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. Currently, the Veteran’s total combined disability rating is 30 percent. Thus, he does not meet the threshold requirements for a TDIU. See 38 C.F.R. § 4.16(a). Nevertheless, VA’s policy is to rate totally disabled all veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Therefore, the claim must be referred to the Director, Compensation Service. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from June 2014 to the present. 2. Send a letter to the Veteran and his representative requesting that he provide sufficient information, including medical provider’s name, location, and dates of treatment, and signed dated authorization(s), for all relevant updated private treatment relating to service-connected left knee disability. All efforts to obtain records should be associated with the claims file and the Veteran and his representative should be provided notification if any of the listed records are unavailable pursuant to 38 C.F.R. § 3.159(e). 3. After completion of #1 and #2, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected left knee disability. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history and such review should be noted in the examination report. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted and recorded, and if possible, with the range of the opposite undamaged joint (right knee). If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. If possible, prior to the November 2012 knee replacement, the examiner should review the records and indicate the estimated range of motion testing from July through November 2012. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. If flare-ups are reported, the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner is to attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. The presence or absence of ankylosis should be noted. The examiner is to indicate the presence or absence of lateral instability and/or recurrent subluxation in the Veteran’s left knee, if any. If instability is present, the examiner is to state whether such instability is slight, moderate, or severe. If instability is not found, the examiner should so state. Further, the examiner must indicate whether there is cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion of the joint or partial removal of the semilunar cartilage. With regard to the left knee’s post-prosthesis placement, the examiner should state whether the Veteran experiences chronic residuals consisting of severe painful motion or weakness in the affected extremity. The examiner should discuss the impact of the Veteran’s left knee disability on his ability to work. Specifically, his ability to work as a mechanic or similar career. It should then be stated whether sedentary work would be possible. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. Provide the Veteran with notice 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 a TDIU, and request that he supply the requisite information. 5. Thereafter, if the Veteran does not meet the schedular requirements under § 4.16(a), refer the claim for a TDIU to the Director, Compensation Service, and notify the Veteran of such action. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel