Citation Nr: 18151830 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-16 612 DATE: November 20, 2018 REMANDED Entitlement to a rating in excess of 30 percent for migraines is remanded. Entitlement to a rating in excess of 20 percent for a back disability is remanded. Entitlement to a rating in excess of 10 percent for left knee disability is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent for a left foot disability is remanded. Entitlement to a rating in excess of 10 percent for a right foot disability is remanded. Entitlement to an earlier effective date than August 29, 2012, for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to an earlier effective date than August 29, 2012, for basic eligibility to Dependents' Educational Assistance (DEA) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1974 to January 1998. 1. Entitlement to increased ratings for a back disability, left and right knee disabilities, right and left foot disabilities, and migraines. With regard to the claims for increased rating, the Veteran was provided the most recent VA examinations in November 2014 for the back and migraines, in October 2012 for the feet, and in July 2011 for the knees. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of a worsening condition regarding all the Veteran’s claimed disabilities to include his back, knees, feet, and migraines, have been set forth by the Veteran since those examinations. When available evidence is too old for an adequate evaluation of the current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only are the most recent examinations temporally remote, but the examinations appear to no longer indicate the Veteran’s current level of disability for the back, knees, feet, and migraines. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran’s claims for increased rating. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to an earlier effective date for TDIU and DEA. In July 2016, the Veteran filed a notice of disagreement to the effective dates established for TDIU and DEA in a May 2016 rating decision. He specifically requested an earlier effective date for TDIU and DEA. No statement of the case addressing that notice of disagreement has been issued. Therefore, the Board is required to remand those claims for issuance of a statement of the case. Manlicon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from his private treatment providers that are not already of record. 3. Issue a statement of the case on the issues of entitlement to earlier effective dates for TDIU and basic eligibility for DEA. Notify the Veteran that he must submit a timely appeal form if he wants appellate review of those issues. If a timely appeal is received, return those claims to the Board. 4. Then, schedule the Veteran for a VA spine examination. The examiner must review the claims file and should note that review in the report. The examiner is specifically asked to report on the current nature and severity of the back disability, to include a current diagnosis. A complete rationale for any opinion expressed should be included in the examination report. The examiner should provide the following: (a) Provide ranges of motion, measured in degrees for active and passive motion, and specifically state whether or not ankylosis is shown. (b) State whether there is any additional loss of function due to painful motion, weakened motion, fatigability, excess motion, incoordination, or on flare up. (c) State whether there is any neurologic symptomatology due to the lumbar spine disability, to include in the lower extremities. If so, state the nerves involved and the level of impairment. 5. Then, schedule the Veteran for a VA knee examination to ascertain the current severity of the service-connected bilateral knee disability, to include limitation of flexion, extension, and any recurrent instability or subluxation. The examiner must review the claims file and should note that review in the report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement as the effect of the service-connected bilateral knee disability on the Veteran’s occupational functioning and daily activities. The examiner should provide a complete rationale for any opinions provided. The examination should include range of motion testing expressed in degrees for both knees for active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner is also specifically asked to describe any functional limitation due to pain, weakened movement, excess motion, fatigability, painful motion, incoordination, or on flare up. The examiner is also asked to indicate whether there is recurrent subluxation or lateral instability of the knee, and if so, the severity of any recurrent subluxation or lateral instability. The examiner should provide an opinion as to whether there is loss of use of the left leg such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election, with use of a suitable prosthetic appliance. The determination should consider remaining function and whether acts such as balance and propulsion could be accomplished equally well by an amputation with prosthesis. 6. Schedule the Veteran for a VA examination of the service-connected bilateral foot disability. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner should provide active and passive ranges of motion, and weightbearing and nonweight-bearing ranges of motion, for the feet. For each joint, the examiner should state whether there is any additional loss of function due to incoordination, fatigability, painful motion, weakened motion, excess motion, or on flare up. The examiner should opine whether a moderate or more severe disability of the bilateral foot is shown. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of service-connected headaches. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the headaches and discuss the effect of the Veteran’s headaches on any occupational functioning and activities of daily living. The examiner should opine as to the frequency of any prostrating attacks and as to whether there are very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. The examiner should also opine whether the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities and should opine as to the date that the Veteran became so. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel