Citation Nr: 18152216 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 14-10 994A DATE: November 21, 2018 ORDER Entitlement to service connection for a left knee disability as secondary to service-connected right knee disability is granted. REMANDED Entitlement to an evaluation in excess of 20 percent for right knee degenerative joint disease prior to December 11, 2017 and in excess of 30 percent from February 1, 2019 is remanded. Entitlement to an evaluation in excess of 10 percent for left hip degenerative joint disease is remanded. Entitlement to a compensable evaluation for left hip limitation of flexion is remanded. Entitlement to a compensable evaluation for left hip limitation of extension is remanded. Entitlement to service connection for varicose veins as secondary to service-connected disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his current left knee disability is secondary to service-connected right knee disability. CONCLUSION OF LAW The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1137, 5107 (2012); 38 C.F.R. § 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to January 1972. Service Connection The Veteran asserts service connection on a secondary basis. Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2018). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A disability which is aggravated by a service-connected disability may also be service-connected to the degree that aggravation is shown. See Allen v. Brown, 7 Vet. App. 439 (1995); see also 38 C.F.R. § 3.310(b). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 1. Entitlement to service connection for a left knee disability as secondary to service-connected right knee disability. The Veteran contends there is a link between his current left knee disability and his service-connected right knee disability. See 38 C.F.R. § 3.310 (disability which is proximately due to or the result of a service-connected disease or injury shall be service connected). As to current disability, the Board notes a March 2010 VA examination shows degenerative changes of the left knee joint and an August 2018 opinion diagnosed the Veteran with degenerative joint disease. Accordingly, a current disability is demonstrated. The Veteran is also service connected for a right knee condition, identified as right knee total knee replacement arthroplasty. Thus, a service-connected disability is demonstrated. As to a relationship between his current left knee disability and his service-connected right knee disorder, the evidence conflicts. The March 2010 VA examiner opined that his right knee disorder did not cause his left knee disability. The examiner noted antalgic gait on examination, but also opined the Veteran had independent ambulation and a stable right knee status post anterior cruciate ligament repair. However, the examiner did not address aggravation. See March 2010 VA Examination. In support of his claim, the Veteran submitted an opinion dated in August 2018 from Dr. T.C. See August 2018 Opinion. The evaluation shows that, after examining the record and describing the Veteran’s current left knee symptoms, Dr. T.C. concluded the Veteran’s left knee degenerative joint disease is due to weight shifting and altered gait due to his right knee disability. The Board finds both opinions are entitled to probative value, as the March 2010 and August 2018 examiners’ opinions were thorough, included review of the claims file, and included supportive rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, there is a relative balance in the medical evidence, and the benefit of reasonable doubt favors the Veteran. Service connection for left knee degenerative joint disease as caused by right knee disability is warranted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND Although the Board regrets the additional delay, with regard to the remaining issues on appeal, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). 2. Entitlement to an evaluation in excess of 20 percent for right knee total knee replacement arthroplasty prior to December 11, 2017 and in excess of 30 percent after February 1, 2019 is remanded. The Veteran contends he is entitled to an increased evaluation for his right knee disability. See May 2018 Hearing Transcript. The Board notes the Veteran underwent total right knee replacement in December 2017 and will be in receipt of a 100 percent evaluation until February 1, 2019 under Diagnostic Code 5055. The condition is rated as 30 percent disabling thereafter. The Veteran’s right knee disability is presently rated as 100 percent disabling under Diagnostic Code (DC) 5055, which compensates for prosthetic replacement of the knee joint. Diagnostic Code 5055 provides for a total disability rating for one year following implantation of the prosthesis. Following that one-year total disability rating, a 30 percent rating is assigned for intermediate degrees of residual weakness, pain or limitation of motion, rated by analogy to Diagnostic Codes 5256, 5261, or 5262, and a 60 percent disability rating assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, DC 5055 (2018). However, the most recent VA examination was conducted in March 2017, prior to his surgery. To date, there has not been an examination conducted that addresses the Veteran’s knee after his surgery, to include chronic residuals consisting of severe painful motion or weakness in the affected extremity. Accordingly, the Veteran should be afforded a new VA examination which addresses the present state of his right knee, status post-total knee replacement. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121 (1991); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Issues 3-5. Entitlement to an evaluation in excess of 10 percent for a left hip degenerative joint disease and compensable evaluations for left hip flexion and extension are remanded. The Veteran contends he is entitled to an increased evaluation for his left hip disabilities. Further, the Veteran contends the most recent VA examination is inadequate because the VA examiner did not accurately record range of motion measurements, and forced his left hip into some ranges of motion. See May 2018 Hearing Transcript. The Board finds that an additional VA examination is necessary to address the Veteran’s contentions and determine the severity of his left hip disability, including to address range of motion during flare-ups. Barr, 21 Vet. App. at 312. 6. Entitlement to service connection for varicose veins as secondary to service-connected disability is remanded. The Veteran asserts his varicose veins are due to left leg pathology that is service-connected. See May 2018 Hearing Transcript. In light of the grant of service-connection for a left knee disability and service-connection being established for left hip disability, the Board finds a VA examination is necessary to address the Veteran’s assertion. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also Wallin, 11 Vet. App. at 512. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran does not meet the criteria for a schedular TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16; see also January 2018 Code-Sheet. Therefore, any award of TDIU would be on extra-schedular basis. A claim for a TDIU may be referred to Compensation Service when a veteran does not meet the percentage standards of 38 C.F.R. § 4.16(a), but is otherwise unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b). At the May 2018 Board hearing, the Veteran provided credible testimony that he has been unemployed since September 2017 due to his service-connected disabilities. See May 2018 Hearing Transcript. Accordingly, this matter should be referred to the Director of Compensation Service to determine whether an extraschedular TDIU is warranted. These matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records or private treatment records identified by the Veteran. All attempts to obtain these records should be documented in the claims file. 2. Schedule the Veteran for VA examination with the appropriate examiner to determine the current severity and manifestations of the Veteran’s service-connected right knee disability. Specifically, the examiner must address the Veteran’s residual right knee disability after his surgery, to include chronic residuals consisting of severe painful motion or weakness in the affected extremity. The examiner must also provide an opinion on whether the Veteran demonstrated right knee instability at any time since 2012. With regard to the Veteran’s right knee disability, the examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected right knee. The examiner must further comment as to whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and the degree to which any additional range of motion is lost due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner(s) is/are asked to describe whether pain significantly limits functional ability during flare-ups, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examinations should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current nature and severity of his service-connected left hip disability. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. Any indicated studies should be performed, including x-rays. 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 must further comment as to whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and the degree to which any additional range of motion is lost due to any of the following should be addressed: (1) pain on use, including during flare-ups and after repeated use over time; (2) weakened movement; (3) excess fatigability; or (4) incoordination. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE OR AFTER REPEATED USE OVER TIME, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups and after repeated use over time. All limitation of function must be identified. If there is no pain and/or no limitation of function, such facts must be noted in the report. Rationale for the requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his claimed varicose veins of the left leg. If another examination is deemed necessary, one should be provided. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left leg varicose veins are CAUSED by service-connected left knee or hip disabilities. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left leg varicose veins are AGGRAVATED BY (permanently increased in severity beyond the natural progress of the condition) by service-connected left knee or hip disabilities. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. The examiner is asked to consider and address the Veteran’s contention that his left knee disability caused his varicose veins. See May 2018 Hearing Transcript. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. (Continued on the next page)   5. The AOJ should refer this case to the Director of Compensation Service for consideration of an extra-schedular TDIU. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Trickey