Citation Nr: 18153645 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 18-14 911 DATE: November 28, 2018 REMANDED The claim of entitlement to an increased (compensable) rating for service-connected headaches is remanded. The claim of entitlement to an increased (compensable) rating for service-connected right hip, limitation of flexion, is remanded. The claim of entitlement to an increased (compensable) rating for service-connected left hip, limitation of flexion, is remanded. The claim of entitlement to an increased (compensable) rating for service-connected right hip, limitation of extension, is remanded. The claim of entitlement to an increased (compensable) rating for service-connected left hip, limitation of extension, is remanded. The claim of entitlement to an increased rating greater than 10 percent for service-connected degenerative joint disease (DJD), right hip, is remanded. The claim of entitlement to an increased rating greater than 10 percent for service-connected DJD, left hip, is remanded. The claim of entitlement to an initial, compensable rating for service-connected right knee, limited extension, is remanded. The claim of entitlement to service connection for urinary incontinence, to include as secondary to service-connected membranous glomerulonephritis with hypertension and proteinuria, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1980 to December 2004. This appeal to the Board of Veterans’ Appeals (Board) arose from July 2017 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for right knee, limited extension, and assigned an initial noncompensable rating and denied service connection for urinary incontinence. The RO also continued noncompensable ratings for limitation of extension and flexion of the bilateral hips and headaches, as well as 10 percent ratings for DJD of the bilateral hips. In October 2017, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2018. She filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in March 2018. A supplemental SOC (SSOC) was issued in May 2018. Also, this appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action in this appeal is warranted. Regarding the claim for service connection for urinary incontinence, the Veteran contends that disability is secondary to service-connected membranous glomerulonephritis with hypertension and proteinuria. The Veteran was afforded a VA examination in July 2017, where she was diagnosed with urinary incontinence. The examiner opined that it was less likely than not that the Veteran’s urinary incontinence was proximately due to or a result of service-connected membranous glomerulonephritis with hypertension and proteinuria. As rationale, the examiner explained that renal function, while related, are separate processes and “[r]enal dysfunction does not cause urinary control disorders.” Therefore, the examiner concluded that urinary incontinence was proximately due to or a result of service-connected membranous glomerulonephritis with hypertension and proteinuria. The Board finds the opinion on secondary service connection inadequate, as the examiner’s rationale relates solely to causation, and the examiner did not specifically address whether the Veteran’s service-connected disability has aggravated her diagnosed urinary incontinence. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 449 (1995) (the phrases “caused by” and “related to” do not address the aggravation aspect of secondary service connection). Under these circumstances, the Board finds that a remand of this matter to obtain further a medical opinion as to secondary service connection based on full consideration of all pertinent evidence of record, and supported by complete, clearly stated rationale-is warranted. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the claims for increased ratings for bilateral hip disabilities, the Veteran was last afforded a VA hip examination in July 2017 to obtain information as to the severity of his disabilities. The United States Court of Veterans Appeals (Court) held that, to adequately assess functional impairment of a joint, the joint involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The report of the July 2017 hip examination reflects that the ranges of active motion of the hips were recorded. However, the Board cannot discern from the examination reports whether the Veteran’s hips were tested for pain in both weight-bearing and non-weight-bearing. Also, the ranges of passive motion of the hips were not provided. See 38 C.F.R. § 4.59; Correia, 28 Vet. App. at 168-170. Given the lack of all necessary findings, as identified above, the Board finds that a new examination to obtain appropriate testing results and clinical findings-based on full consideration of the Veteran’s documented medical history and assertions, and which includes more detailed range of motion testing information, as referenced above-is needed to assess the severity of the service-connected hip disabilities. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Hence, the AOJ should arrange for the Veteran to undergo a VA hip examination by an appropriate medical professional and obtain an addendum opinion regarding the Veteran’s urinary incontinence. The Veteran is hereby notified that failure to report to any scheduled examination(s) without good cause, may well result in denial of her claim(s). See 38 C.F.R. § 3.655 (a),(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the AOJ should associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination(s)-preferably, any notice(s) of examination-sent to her by the pertinent medical facility. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record with respect to the remaining claims is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As regards VA records, the claims file includes records of the Veteran’s treatment records from the Fayetteville VA Medical Center (VAMC) dated through June 27, 2018. However, the Veteran submitted a VA 21-526EZ, Fully Developed Claim, in October 2018 indicating ongoing VA treatment related, in part, to service-connected headaches. This indicates that there are potentially relevant outstanding VA treatment records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. The AOJ’s adjudication of each increased rating claim should include consideration of whether “staged rating” of the disability assignment of different ratings for distinct periods of time, based on the facts found, is appropriate. The matters are hereby REMANDED for the following action: 1. Obtain from the Fayetteville VAMC and any associated facility(ies) all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran dated since June 2018. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran a letter requesting that the Veteran provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any remaining claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding pertinent private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain from the July 2017 VA examiner an addendum addressing the etiology of the Veteran’s urinary incontinence. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician based on claims file review (to the extent possible). Only arrange for the Veteran to undergo examination if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented history and lay assertions. If the Veteran is examined, all indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and clinical findings should be reported in detail. Then, with respect to diagnosed urinary incontinence, the examiner is requested to provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that urinary incontinence is or has been aggravated (worsened beyond natural progression) by the Veteran's service-connected membranous glomerulonephritis with hypertension and proteinuria. If aggravation is found, the physician should attempt quantify the degree of additional disability resulting from aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to the aggravation. The physician is advised that the Veteran is competent to report matters within her personal knowledge, to include symptoms and events), and that lay assertions in this regard must be considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 5. Also, after all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination, by an appropriate medical professional, for evaluation of his service-connected right and left hip disabilities. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran’s documented history and lay assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing (expressed in degrees) of each hip on both active motion and passive motion, and in both weight-bearing and non-weight-bearing (as appropriate). 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 so state and explain why. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with either hip. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right and/or left hip due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran has any ankylosis of either hip; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. Additionally. the examiner should identify and comment on the existence or extent of, as appropriate, any flail joint or femur impairment. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include, for each higher rating claim, consideration of whether “staged rating” of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel