Citation Nr: 18153068 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 11-02 121 DATE: November 27, 2018 ORDER Service connection for a left groin scar is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for left knee internal derangement is remanded. Entitlement to a disability rating in excess of 20 percent for left quadriceps atrophy with left femoral neuropathy is remanded. Entitlement to a disability rating in excess of 10 percent for right retropatellar pain syndrome is remanded. Entitlement to service connection for depression as secondary to service-connected disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability is remanded. Eligibility for financial assistance in the purchase of an automobile or other conveyance and necessary adaptive equipment, or adaptive equipment only is remanded. FINDING OF FACT The Veteran has a left groin scar from surgical nerve release necessitated by trauma from a surgery for her service-connected left knee internal derangement. CONCLUSION OF LAW The criteria for secondary service connection for a left groin scar are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service between January 1976 and February 1976. Entitlement to service connection for a left groin scar The Veteran was provided with a VA examination in February 2018 where the examiner noted that the Veteran presented with a left groin scar status-post nerve release and a left knee scar. While the examiner only stated an opinion concerning the left knee scar, there is other sufficient evidence of record to support a conclusion that the Veteran’s left groin scar is etiologically related to her left knee internal derangement and left femoral neuropathy. Specifically, an August 1979 note from a private orthopedic surgeon stated that EMG and nerve conduction studies were suggestive of left femoral nerve entrapment at the thigh probably related to trauma from the tourniquet from knee surgery in 1976. The Veteran underwent a surgical procedure in July 1979, exploration and release of femoral nerve and arthroscopy, which involved an incision over the left femoral nerve for several inches, with a post-operative diagnosis of femoral nerve entrapment, left groin and chondromalacia medial femoral condyle, knee. Together, this evidence is found sufficient to support a grant of service connection for scar, left groin on a secondary basis. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for left knee internal derangement. The Veteran was most-recently provided with a VA examination of her left knee in February 2018. The examination report reflects that she demonstrated full flexion and extension on range of motion testing at that time, and that pain was exhibited on both left knee flexion and extension. While the examiner stated an opinion that pain significantly limits functional ability of the left knee with repeated use over a period of time and with flare ups, and indicated that he was able to describe the expected additional functional loss in terms of range of motion, he indicated that the Veteran’s range of motion would be full (0-140 degrees) under such circumstances. Additionally, although the Veteran’s VA treatment records indicate that she uses a motorized scooter, the examination report states that the Veteran does not use any assistive devices as a normal mode of locomotion. The Veteran was provided with a private independent medical review in April 2017 during which the Veteran described significantly greater limitation of motion and symptoms including instability, and in which the reviewing physician conducted an in-depth review of the evidence of record and highlighted particular medical records which he found supported the Veteran’s lay evidence regarding the severity of her left knee disability. While the reviewing physician documented statements made by the Veteran over the telephone regarding the degree to which she could flex her knee, there is no indication that the Veteran has the training or specialized knowledge needed to accurately address the range of motion of her knee utilizing a goniometer, and the physician did not observe the Veteran’s range of motion in person. Given the vastly different levels of disability depicted in these evaluations, and the inadequacy of the February 2018 VA examination, an additional examination is found warranted in order for a new examiner to more-specifically address the medical evidence of record with regard to its consistency or inconsistency with the Veteran’s reports of significant pain rendering her unable to walk, and unable to stand or sit for any significant period of time. 2. Entitlement to a disability rating in excess of 20 percent for left quadriceps atrophy with neuropathy. The Veteran was most recently provided with VA examination addressing the severity and manifestations of her left quadriceps atrophy with left femoral neuropathy in August 2015. The VA examiner responded to a number of the questions presented with a single word, yes/no response, without providing any explanation for how he reached such conclusions. Further, although muscle strength testing was performed, it does not appear that specific testing was performed concerning the severity of the Veteran’s neurological disability affecting the femoral nerve, and no opinion was provided as to the severity of this disability. On remand, the Veteran must be provided with an examination and medical opinion which adequately addresses the Veteran’s left femoral neuropathy to allow the Board to accurately assess its severity and manifestations. 3. Entitlement to a disability rating in excess of 10 percent for right retropatellar pain syndrome. Development ordered for the remanded issue of entitlement to a disability rating in excess of 20 percent for left knee derangement could significantly impact a decision on the issue of entitlement to a disability rating in excess of 10 percent for right retropatellar pain syndrome. Therefore, the issues are inextricably intertwined. Further, although the Veteran has previously reported that both knees give out on her, the February 2018 VA examiner stated that there was no history of recurrent subluxation or lateral instability. On remand, examination should also be conducted to assess the manifestations and severity of the Veteran’s right knee disability, with particular attention paid to the Veteran’s reports of giving way. Entitlement to service connection for depression as secondary to service-connected disability. The Veteran was provided with a VA mental health examination in September 2015. At that time, the examiner assessed the Veteran’s depressive disorder as being of a severity as could result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. She stated an opinion that it was at least as likely as not that the Veteran’s depression was aggravated beyond its natural progression by her service-connected conditions, but stated that a baseline level of severity could not be established because the Veteran’s depression began in 1997 subsequent to the loss of her father and was treated with medication. The Veteran submitted an affidavit in February 2012 stating that her left knee and quadriceps conditions began worsening in 2006, significantly limiting her ability to stand or walk any great distance and resulting in great discomfort and fear of falling. Review of the claims file would seem to indicate that the Veteran’s depression was largely controlled by continuous medication prior to her reported increase in knee symptoms. On remand, a supplemental medical opinion should be sought concerning whether a baseline level of severity of the Veteran’s depression can be determined on an at least as likely as not basis, with particular attention paid to any progression of the Veteran’s depression in relation to progression of her service-connected disabilities. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). As noted above, additional VA examination and medical opinion is being sought on remand in an attempt to reconcile or put in context the conflicting medical opinion evidence of record. On remand, the VA examiner should also be asked to provide an opinion as to the expected effect of the Veteran’s service-connected disabilities on her ability to perform various occupational functions. Clarification is also needed concerning the Veteran’s occupational history. While she has previously indicated that she last engaged in part-time employment in 2009, a VA primary care note from April 2014 documented the Veteran’s report of “trying to exercise as best she can by walking her dog and moving around her building as part of her job in Leisure World.” An earlier October 2013 VA primary care note indicated that she was then on the board as Secretary/Treasurer. The Veteran should be asked to provide clarification as to what activities/duties this entailed, how many hours per week she engaged in said work, and whether or not she received compensation. While the appeal is in remand status, action should be taken by the AOJ to ensure that if any vocational rehabilitation folder exists for the Veteran, that it is associated with the claims file. 5. Eligibility for financial assistance in the purchase of an automobile or other conveyance and necessary adaptive equipment, or adaptive equipment only. Finally, because a decision on the remanded issues above could significantly impact a decision on the issue of entitlement to financial assistance in the purchase of an automobile or other conveyance and necessary adaptive equipment, or adaptive equipment only, the issues are inextricably intertwined. A remand of the automobile claim is therefore also is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2018 to the Present and associate them with the claims file. 2. Determine whether a VA Vocational Rehabilitation folder exists for this Veteran; if so, associate it with the claims file. All efforts to obtain such records must be fully documented and a negative response should be recorded if no records are found. 3. Contact the Veteran and request clarification as to whether she has been employed at any time since her last-reported employment in 2009. Request clarification as to references in her VA treatment records concerning her “job” with Leisure World and position on the board as Secretary/Treasurer (referenced in VA treatment records from 2013 and 2014,) including whether she received payment and if so, how much, and whether she worked full or part-time. 4. After completing the aforementioned development and associating all responsive records with the Veteran’s VA claims file, schedule the Veteran for an examination or examinations to assess the current severity and manifestations of her left knee internal derangement, left quadriceps atrophy with left femoral neuropathy, and right retropatellar pain syndrome. All appropriate tests, including those relating to functioning of the joint and neurological impairment, should be performed. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner is asked to record the Veteran’s description of her symptoms in detail, and to comment upon whether the Veteran’s reports that her knees “give away” are referring to what could be considered recurrent subluxation or lateral instability of the joint. An opinion must be made as to whether the Veteran suffers or has suffered from instability of either or both knees at any point during the relevant appeal period; and if so, whether such impairment is slight, moderate, or severe. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare ups, and the degree of functional loss during flare ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to each disability alone and discuss the effect of each disability on any occupational functioning and activities of daily living, with specificity (e.g. sitting likely limited to X hours out of an 8-hour work day, standing limited to Y hours, walking limited to Z hours, etc…). If it is not possible to provide a specific measurement, or an opinion regarding flare ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is asked to address the prior medical opinions of record pertaining to the severity of the Veteran’s service-connected lower extremity disabilities. The examiner should carefully consider both the lay and medical evidence of record in discussing whether the Veteran’s reported level of disability is found to be consistent or inconsistent with objective findings at the examination and the other evidence of record (rather than simply checking a box on a questionnaire form). Finally, the examiner is asked to comment on the Veteran’s retained ability to use her left and right foot, particularly in terms of her standing, balance, and propulsion abilities. Is the functional impairment of such a severity that the Veteran would be equally well-served by a prosthesis? 5. Thereafter, refer the Veteran’s claims file to an appropriate medical professional (hereinafter “reviewer”) who has not yet provided an opinion on this matter for a supplemental medical opinion as to the Veteran’s depression. The reviewer must be given full access to the complete VA claims file and electronic records for review. The reviewer must specifically note on the medical opinion report whether the claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with providing this opinion. If, after review of the file, the reviewer determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. After reviewing the evidence of record, including the September 2015 examination report wherein the examiner found it at least as likely as not that the Veteran’s depression was aggravated beyond its natural progression by her service-connected lower extremity disabilities, the reviewer is asked to state an opinion as to whether a baseline level of severity of the Veteran’s depression (i.e. corresponding to a particular rating under the General Rating Formula for Mental Disorders) can be determined on an at least as likely as not basis. In reaching a conclusion, the reviewer should address the Veteran’s lay statements concerning a progressive decline in her service-connected disabilities beginning in 2006 and state whether it is at least as likely as not that there is resulting aggravation beyond the natural progression of her depression by these further functional limitations. I.e., can the pre-2006 level of psychiatric disability be appropriately described as symptoms largely controlled by medication and would this be an appropriate baseline level of disability prior to aggravation by the increased lower extremity symptoms and worsening functional impairment? The reviewer must include in the medical report the rationale for any opinion expressed. The reviewer should cite to relevant evidence in the record, and provide an explanation as to how that evidence supports their conclusion(s). Opinions stated as mere conclusions without an underlying explanation will be returned as inadequate. If the reviewer cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the reviewer (i.e. additional facts are required, or the reviewer does not have the needed knowledge or training). 6. Thereafter, review the requested medical reports to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. 7. After completing the aforementioned, and any additional development deemed necessary in light of the expanded record, readjudicate the Veteran’s claims for entitlement to higher disability ratings for left knee internal derangement, left quadriceps atrophy with left femoral neuropathy, and right retropatellar pain syndrome, entitlement to service connection for depression as secondary to service-connected disability, entitlement to a TDIU, and entitlement to financial assistance in the purchase of an automobile or other conveyance and necessary adaptive equipment, or auto adaptive equipment only. If any of the benefits sought on appeal are not granted in full, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel