Citation Nr: 18159460 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-19 718 DATE: December 20, 2018 ORDER Entitlement to an initial rating in excess of 50 percent for adjustment disorder with depression and anxiety, is dismissed. REMANDED Service connection for left lower extremity peripheral neuropathy is remanded. Service connection for right lower extremity peripheral neuropathy is remanded. Service connection for a right knee disorder is remanded. Service connection for a low back disorder is remanded. An initial rating in excess of 10 percent for left knee degenerative joint disease (DJD) limitation of flexion is remanded. An initial rating in excess of 20 percent for left ankle strain with marked limitation of motion is remanded. An initial 20 percent rating for right ankle DJD with marked limitation of motion is remanded. A total disability based on individual unemployability (TDIU) prior to February 19, 2016, is remanded. REASONS FOR REMAND 1. Service connection for left lower extremity peripheral neuropathy is remanded. 2. Service connection for right lower extremity peripheral neuropathy is remanded. In November 2013, the Veteran was afforded a VA diabetic sensory-motor peripheral neuropathy examination. He was diagnosed with diabetic peripheral neuropathy. The examiner opined that the peripheral neuropathy was less likely than not proximately due to or the result of service-connected right or left ankle disabilities. In support, the examiner noted that the Veteran’s service treatment records (STRs) are silent as to complaints of neurological symptoms in the lower extremity after injury and that the “stocking and glove” distribution of symptoms is consistent with diabetic peripheral neuropathy. Further, medical literature does not support a connection between peripheral neuropathy and the Veteran’s ankle disabilities. The November 2013 VA examiner’s medical opinion is well-reasoned. However, the Board must remand for an addendum opinion to explore the Veteran’s direct theory of entitlement. Further, the examiner’s opinion did not explore the aggravation prong of secondary service connection. Finally, the Veteran has claimed that peripheral neuropathy is actually RSD or CPRS. These claimed diagnoses should be explored as well. 3. Service connection for a right knee disorder is remanded. A medical opinion as to the Veteran’s right knee disorder is currently of record. However, the Veteran is now claiming that his right knee disorder was caused or aggravated by his left knee, left ankle, and right ankle disabilities, either singularly or in combination. A medical opinion is necessary to explore these theories of entitlement. In doing so, the examiner should be aware that the Veteran has reported pain, instability, and cracking and popping in both knees. This constitutes a current knee disability under Saunders v. Wilkie, 886 F.3d 1356, 1361 (2018). 4. Service connection for a low back disorder is remanded. The Veteran claims that his low back pain is related to service. Although pain without functional impairment does not constitute a disability, Saunders, the evidence of low back pain indicates that there might be a current disability. Further, the Veteran claims that his low back pain was caused by his service-connected left knee, left ankle, or right ankle disabilities, either singularly or in combination. He has not yet been afforded a VA examination of his claimed back disorder. Therefore, he should be afforded a VA examination of his back on remand, and a medical opinion should be obtained. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Veteran wrote in his August 2018 statement that his complete VA medical records, including those through VA’s Choice Program had not been obtained. Upon remand, all outstanding VA medical records, including those constructively of record through VA’s Choice Program, must be obtained. 5. An initial rating in excess of 10 percent for left knee degenerative joint disease (DJD) limitation of flexion is remanded. 6. An initial rating in excess of 20 percent for left ankle strain with marked limitation of motion is remanded. 7. An initial 20 percent rating for right ankle DJD with marked limitation of motion is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s disabilities, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As such a new VA examination is needed. In his August 2018 statement, the Veteran raised several issues with respect to the past VA examinations, including that they did not use a goniometer to measure his limitation of motion. At this point, the Board observes that, per VA regulations, “[t]he use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within” VA. 38 C.F.R. § 4.46. Thus, while goniometer use is “indispensable,” it is not absolutely required. A remand for a new VA examination is not needed on this basis, but instead to ensure that his limitation of motion and functional limitations during flare-ups and after repetition over time are accurately measured. 8. A total disability based on individual unemployability (TDIU) prior to February 19, 2016, is remanded. The development and decision on the remanded issues will significantly impact a decision on the TDIU issue. Therefore, the issues are inextricably intertwined, and a remand of the TDIU issue is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records, including records of all treatment through VA’s Choice Program. 2. Afford the Veteran a VA examination of his back and provide an opinion for the following: (A) Identify a current diagnosis for the Veteran’s claimed back symptoms and note functional impairment from those symptoms. (B) Whether it is at least as likely as not that the Veteran’s low back disorder was caused or aggravated by his left knee, left ankle, or right ankle disabilities, either singularly or in combination. A complete rationale should be provided for any opinion rendered. 3. Obtain an addendum opinion as to the etiology of the Veteran’s left and right lower extremity peripheral neuropathy as well as his claimed right knee disorder. Specifically, the examiner should opine as to the following: (A) Confirm the current diagnosis. Please note that the Veteran has claimed that the proper diagnosis for his symptoms is Reflex Sympathy Dystrophy Syndrome (RSD) or Complex Regional Pain Syndrome (CPRS). (B) Whether it is at least as likely as not that the Veteran’s left and/or right lower extremity peripheral neuropathy (or RSD/CPRS) is related to service. (C) Whether it is at least as likely as not that the Veteran’s left and/or right lower extremity peripheral neuropathy (or RSD/CPRS) was caused or aggravated by his service-connected left ankle or right ankle disabilities. (D) Whether it is at least as likely as not that the Veteran’s right knee pain, clicking, and instability are related to service. (E) Whether is it at least as likely as not that the Veteran’s right knee pain, clicking, and instability were caused or aggravated by the Veteran’s left knee, left ankle, and right ankle disabilities, either singularly or in combination. (Continued on the next page)   4. Schedule the Veteran for an examination of the current severity of his knee and ankle disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and after repeated use over time, and the degree of functional loss during flare-ups and after repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, 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). C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George