Citation Nr: 1808065 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 15-24 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to an increased rating greater than 10 percent for a left heel and ankle disability. 2. Entitlement to a compensable rating for a right knee disability. 3. Entitlement to a compensable rating for a left knee disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran had active service from October 1987 to March 1988 and from December 2001 to October 2002, with additional service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In a February 2010 rating decision, the issue of entitlement to service connection for a left heel and ankle disability was granted and assigned a noncompensable evaluation. In a November 2011 rating decision, the issue of entitlement to service connection for a bilateral knee disability was granted with a noncompensable evaluation, and entitlement to a compensable rating for a left heel and ankle disability was granted with an evaluation of 10 percent. In August 2016, the Veteran testified before the undersigned in a videoconference hearing. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's left heel and ankle disability is rated 10 percent disabling under Diagnostic Code 5284 for other foot injuries. His right and left knees are both rated noncompensable under Diagnostic Code 5260 for limitation of motion. He contends that the current severity of his disabilities warrant an increased evaluation, and indicated in an August 2016 hearing that his symptomatology has worsened. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claims can be adjudicated on the merits. The Veteran was afforded VA examinations in January 2010, May 2011, October 2011 and June 2015. The Veteran contends that his most recent June 2015 VA examination was not an accurate representation of his current disability, as he is constantly in pain and takes approximately 112 prescription pills each month to help him through the pain. See August 2016 hearing transcript at page 14. The Veteran additionally provided testimony that his left heel and ankle are in constant pain at the bottom part of his foot and the back side of his heel; he has constant dull pain as his spur builds up with calcium; he believes the dull pain is from the left foot bone, and the spurs are from the muscle pushing up against the spur; he has been taking hydrocodone regularly for almost four years; his knees pop and wobble as he switches pressure between his left and right feet; and his left knee feels like it is coming out of joint. See August 2016 hearing transcript at pages 4-5, 9-11 and 13-14. As this indicates a worsening of his conditions, the Board finds that the Veteran should be afforded a new VA examination to determine the current severity of his disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination); see also Caffrey v. Brown, 6 Vet. App. 377 (1994);VAOPGCPREC 11-95 (1995). Regarding the TDIU, as it is dependent upon the degree of impairment from service-connected disabilities, the appeal cannot be fully resolved until it is determined what disability ratings are assigned for the entire period of the appeal. As the issues of entitlement to higher ratings for a left heel and ankle disability and a bilateral knee disability remain on appeal, the issue of entitlement to TDIU cannot fully and fairly be adjudicated until the question of increased ratings are settled. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding medical treatment records relevant to his claimed disabilities. After obtaining necessary authorization from the Veteran, all outstanding records should be obtained, to include all relevant VA treatment records from 2015 to the present, and records from his private physician. 2. After obtaining any outstanding records, the Veteran should be afforded an updated VA examination to determine the current nature and severity of his service-connected left heel and ankle disability. Following a review of the claims file, and this remand, the examiner should address the following: a) Identify the nature and severity of all current manifestations and symptoms of the service-connected left heel and ankle disability. b) For the left foot, state whether the disability results in moderate, moderately severe, or severe impairment. Provide details to support each conclusion and comment on why the other listed levels of impairment do not apply. If the Veteran experiences flare-ups, record the dates and duration of same since 2011. c) Finally, the examiner must provide a full description of any functional effects that these disabilities have on his activities of daily living, and the description must reflect consideration of the Veteran's own statements. The examiner must consider and discuss the following in his or her opinions: * The Veteran's testimony that his left heel and ankle are in constant pain at the bottom part of his foot and the back side of his heel. * His testimony that he has constant dull pain as his spur builds up with calcium. * His contention that the dull pain he experiences is from the left foot bone, and the spurs are from his muscle pushing up against the spur. * The Veteran contends that he has been taking approximately 112 hydrocodone pills regularly each month for almost four years to assist with pain. 3. After obtaining any outstanding records, the Veteran should be afforded an updated VA examination to determine the current nature and severity of his service-connected bilateral knee disability. Following a review of the claims file, and this remand, the examiner should address the following: a) The examiner should identify any diagnoses and symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected bilateral knee disability. All appropriate testing, including range of motion, should be performed. b) The examiner is asked to describe whether pain significantly limits functional ability during flare-ups and after repetitive use, and if so, the examiner must estimate range of motion in degrees during those times. If the examination does not take place during a flare or after repetitive use, the examiner must glean information regarding the severity, frequency, duration and functional loss manifestations during such times from the Veteran, medical records, and other available sources to provide the requested estimations. Efforts to obtain such information must be documented, including the dates and duration of each flare-up since 2011. If there is no pain and/or no limitation of function, such facts must be noted in the report. c) The examination should also record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. d) Finally, the examiner must provide a full description of any functional effects that these disabilities have on his activities of daily living, and the description must reflect consideration of the Veteran's own statements. The examiner must consider and discuss the following in his or her opinions: * The Veteran's testimony that his knees pop and wobble as he switches pressure between his left and right feet. * The Veteran's testimony that his left knee feels like it is coming out of joint. The examiner should provide a complete rationale for all opinions provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reports, he or she must provide the medical rationale for doing so. The absence of treatment records is not a legally sufficient reason for rejecting the Veteran's reports, unless the existence of such records would be medically expected. 4. After completing the above actions, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).