Citation Nr: 1808545	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  96-26 920	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for left side and hand weakness?

2. What initial rating is warranted for facial and earlobe scars since January 4, 2010?

3. Entitlement to an increased rating for lumbosacral arthritis, currently evaluated as 20 percent disabling.

4. Entitlement to an increased rating for cervical arthritis, currently evaluated as 20 percent disabling.  

5. What evaluation is warranted for urethrostenosis, currently evaluated as 20 percent disabling? 

6. Entitlement to special monthly compensation for loss of use of a creative organ, to include erectile dysfunction, secondary to urethrostenosis.

7. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for left side and hand weakness?

8. Entitlement to an increased rating for left knee arthritis, currently evaluated as 10 percent disabling.

9. Entitlement to an increased rating for right knee arthritis, currently evaluated as 10 percent disabling.

10. Entitlement to an increased rating for left hip arthritis with tendinitis, currently evaluated as 20 percent disabling.  

10. Entitlement to an increased rating for right hip arthritis with tendinitis, currently evaluated as 20 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Booker, Associate Counsel


INTRODUCTION

The Veteran had active service from April 1953 to April 1983. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2000, June 2002, and March 2016 rating decisions by various Department of Veterans Affairs (VA) Regional Offices (RO).

The March 2000 rating decision granted, in pertinent part, service connection for facial and earlobe scars, and assigned a noncompensable rating effective April 29, 1998.

The June 2002 rating decision denied entitlement to special monthly compensation for loss of use of a creative organ.  

In July 2004, the Veteran testified at a hearing before the undersigned sitting at the RO in San Diego, California.  A copy of the transcript has been associated with the Veteran's electronic claims file.

In February 2005, the Board remanded the case for additional development.  In April 2012, the Board again remanded the issues of entitlement to increased ratings for facial and earlobe scars, and entitlement to special monthly compensation for loss of use of a creative organ, secondary to urethrostenosis for additional development.  Those matters have now returned for appellate review.

A March 2016 rating decision denied entitlement to ratings in excess of 20 percent disabling for lumbosacral spine arthritis, cervical spine arthritis, left hip arthritis with tendinitis, right hip arthritis with tendinitis, and urethrostenosis.  It also denied entitlement to ratings in excess of 10 percent for right and left knee arthritis; and entitlement to service connection for left side and hand weakness finding that no new and material evidence has been submitted.

The claims of entitlement to increased ratings for arthritis of the knees and hips with tendinitis, and entitlement to special monthly compensation for loss of use of a creative organ, to include erectile dysfunction, secondary to urethrostenosis are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT  

1. Since January 4, 2010, the Veteran's scars were not moderately disfiguring, poorly nourished with repeated ulceration, or tender and painful on objective demonstration.

2. Since January 4, 2010, the Veteran's facial and earlobe scars have not manifested by at least one characteristic of disfigurement; painful upon examination, unstable, or visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features; or one limitation of the affected part.  

3. The Veteran's lumbosacral spine arthritis is not manifested by forward thoracolumbar flexion to 30 degrees or less, or by favorable ankylosis of the entire thoracolumbar spine.

4. The Veteran's cervical arthritis is not manifested by forward flexion of the cervical spine to 15 degrees or less, or by favorable ankylosis of the entire cervical spine.

5. The Veteran's urethrostenosis has not been manifested by voiding dysfunction requiring the wearing of absorbent materials which must be changed 2 to 4 times per day, daytime voiding interval less than one hour, or; awakening to void five or more times per night

6. A June 1986 Board decision denied entitlement to service connection for left side and hand weakness.  That decision could not be appealed as a matter of law, and it is final.  

7. Evidence received since the June 1986 Board decision is cumulative, redundant, and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a left side and hand weakness disability.


CONCLUSIONS OF LAW

1. The criteria have not been met for a compensable rating for facial and earlobe scars at any time since January 4, 2010.  38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.118, Diagnostic Codes 7800, 7803, 7804 (1998); 38 C.F.R. §§  3.159, 3.321, 4.1, 4.2, 4.3, 4.7 4.31, 4.118, Diagnostic Codes 7800, 7803, 7804 (1998 & 2002).  

2. The criteria for a rating in excess of 20 percent for lumbosacral arthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242 (2017).  

3. The criteria for a rating in excess of 20 percent for cervical arthritis have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242.

4. The criteria for a disability evaluation in excess of 20 percent for urethrostenosis are not met.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.20, 4.115a, 4.115b, Diagnostic Codes 7518, 7529.

5. The June 1986 Board decision is final, and new and material evidence has not been submitted to reopen a claim of entitlement to service connection for left side and hand weakness.  38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 20.1100; 20.1105 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

With respect to the claims addressed herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

The Veteran was provided with VA examinations in March and April 2016 to evaluate the current severity of his spine, facial and earlobe scars, and urethrostenosis.  In May 2017 the appellant asserted that the VA examinations he received to evaluate these claims were "not adequate, partial [and] incomplete".  No evidence was provided, however, showing why the examinations were inadequate.  Indeed, no other details were provided in his statement.  The Board finds the examination reports to be collectively adequate, as the examiners reviewed the Veteran's claims file, interviewed the claimant, they were informed of and documented relevant facts regarding his medical history, conducted clinical evaluations, and described the current severity of his disabilities in sufficient detail so that the Board's evaluation is an informed determination.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The examiners also opined on the functional impact the disabilities have on the Veteran's daily activities and ability to work.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

In summary, the Board finds that VA has fulfilled its duties to notify and assist the Veteran with regard to these claims, therefore appellate review may proceed.

Increased Ratings

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The veteran's entire history is reviewed when making disability ratings.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In cases where the question for consideration is the propriety of the initial disability rating assigned, an evaluation of the medical evidence since the grant of service connection and a consideration of the appropriateness of a "staged rating" is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  This compensates the veteran for times since the effective date of his award, when his disability has been more severe than other times. 

When weighing evidence, lay statements that describe the features or symptoms of an injury or illness are considered competent evidence.  Falzone v. Brown, 8 Vet. App. 398 (1995).  A lay person is also competent to provide opinions on some medical issues.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  Once evidence is determined competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).  

I. Facial and Earlobe Scars

A March 2000 rating decision assigned a noncompensable evaluation for facial and earlobe scars, effective April 29, 1998, which was later amended to April 22, 1998. 

In April 2012, the Board denied entitlement to a compensable rating for facial and earlobe scars between August 30, 2002 and January 3, 2010.  The Board then remanded the claim for further development since January 4, 2010.

Diagnostic Code 7800 (1998)

The Veteran's facial and earlobe scars were observed during a July 2012 VA examination.  The scars measured 1.2 centimeters long by 0.2 centimeters wide, and 0.8 centimeters long and 0.1 centimeters wide.  The scars were neither hyperpigmented nor hypopigmented.  They were smooth on palpation.  The scar textures were normal.  The underlying soft tissues were intact.  The skin was soft and flexible, and it did not adhere to underlying tissue.  The scars were opined to be stable, and not painful.

As noted in the April 2012 Board decision, during the pendency of the Veteran's appeal, the rating schedule was revised with respect to skin disorders.  67 Fed. Reg. 49,590-49,599 (July 2002).  Those changes became effective August 30, 2002.  The provisions of 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 were again amended effective October 2, 2008, however, that amendment applied only to applications for benefits received by VA on or after October 23, 2008, and as such the latter amendment is not applicable.

Under the former version of 38 C.F.R. § 4.118, Diagnostic Code 7800, a noncompensable evaluation was warranted for a slightly disfiguring scar of the head, face, or neck.  A 10 percent evaluation required that such a scar be moderately disfiguring.  38 C.F.R. § 4.118, Diagnostic Code 7800 (1998).

Further, prior to August 30, 2002, for superficial scars that were tender and painful on objective demonstration, a 10 percent evaluation was warranted under 38 C.F.R. § 4.118, Diagnostic Code 7804 (1998).  Superficial and poorly nourished scars with repeated ulceration also warranted a 10 percent evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7803. 

The Board finds that entitlement to a compensable evaluation is not warranted under the old Diagnostic Code 7800, as the July 2012 VA examiner described the Veteran's scars as not disfiguring.  A compensable evaluation under Diagnostic Code 7800 prior to August 30, 2002, required the scar to be at least moderately disfiguring.  Because the scars were neither objectively painful nor poorly nourished with repeated ulceration, a 10 percent rating was not warranted under Diagnostic Code 7803 or 7804 prior to August 30, 2002.  

Diagnostic Code 7800 (2002)

After August 30, 2002, scars were evaluated under Diagnostic Code 7800, relating to "scar(s) of the head, face, or neck" due to burns or other causes.  38 C.F.R. § 4.118, Diagnostic Code 7800 (2002).  Under this version, a 10 percent evaluation is contemplated when there is one characteristic of disfigurement.  Id.  A 30 percent evaluation is assigned when there is "visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips)"; or when there are two or three characteristics of disfigurement.  Id.  

There are eight characteristics of disfigurement for purposes of evaluation under 38 C.F.R. § 4.118 (2002) were: scar 5 or more inches (13 or more centimeters) in length; scar at least one-quarter inch (0.6 centimeters) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters); underlying soft tissue missing in an area exceeding 6 square inches (39 square centimeters); and, skin indurated and inflexible in an area exceeding 6 square inches (39 square centimeters).  Id. at Note (1). 

These characteristics of disfigurement "may be caused by one scar or by multiple scars; the characteristics required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation."  Id. at Note (5).  

The Board finds that a noncompensable initial rating since January 4, 2010, is appropriate under 38 C.F.R. § 4.118, Diagnostic Code 7800 (2002).  

The Board considered the Veteran's statement at the July 2004 travel board  hearing, that the facial and earlobe scars swelled, and were painful and tender.  The Veteran also reported that the scars had required lancing a few years prior.  He complained that the scars would at times generate boils.  

As stated above, during a July 2012 VA examination, the examiner measured the scars as 1.2 centimeters long by 0.2 centimeters wide, and 0.8 centimeters long by 0.1 centimeters wide.  The scars were neither hyperpigmented nor hypopigmented.  They were smooth on palpation with normal texture.  The underlying soft tissues were intact.  The skin was soft and flexible, and it did not adhere to underlying tissue.  The scars were judged to be stable, and not painful.

Considering the foregoing, the Board finds a noncompensable disability rating is appropriate for the service-connected facial and earlobe scars.  A 10 percent rating is not warranted because the scars do not meet any of the eight characteristics of disfigurement.  That is, no scar is 13 centimeters in length, or 0.6 centimeters in width; there is no elevation or depression on palpation; there is no adherence to underlying tissue, there is no abnormal texture, hypopigmentation or hyperpigmentation, or inflexibility is noted.  Finally, there is no tenderness, tissue loss, ulceration, keloid formation, or sensory changes.  Thus, entitlement to a 10 percent rating is not warranted.  

The claim is denied.

II. Lumbosacral and Cervical Arthritis

The Board has also considered whether the Veteran's arthritis of the lumbosacral and cervical spines can be assigned higher ratings than those currently assigned.  In a March 2016 rating decision, ratings in excess of 20 percent were denied for both spine disabilities.  The Veteran contends that these disorders have worsened, and that he received inadequate examinations to evaluate his disabilities.

The Veteran's lumbosacral and cervical spine arthritises are evaluated under Diagnostic Code 5003 and 5242 for degenerative arthritis of the spine.  See 38 C.F.R. § 4.71a. 

The general rating formula for diseases and injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease is rated as follows: 

A 40 percent rating is warranted when forward thoracolumbar flexion is limited to 30 degrees or less; or when there is favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a. 

When forward cervical flexion is limited to 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine a 30 percent rating is assigned.  Id. 

Where forward thoracolumbar flexion is greater than 30 degrees but not greater than 60 degrees; or, where forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, when the combined range of motion of the cervical spine is not greater than 170 degrees; or, when muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis a 20 percent rating is assigned.  Id. 

Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees.  The normal combined range of motion for the thoracolumbar spine is 240 degrees.  Id. 

Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The normal combined range of motion of the cervical spine is 340 degrees.  Id. 

Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. 

The Veteran appeared for a VA examination of his spine in March 2016.  The examiner found severe lumbar arthritis with degenerative scoliosis. Range of motion studies of the thoracolumbar revealed flexion to 50 degrees with pain, extension to 20 degrees with pain, and 15 degrees of motion in all other planes of movement.  The Veteran exhibited guarding that did not result in an abnormal gait or abnormal spine contour.  There was no evidence of muscle spasm.  There was localized tenderness that did not result in an abnormal gain or abnormal spine contour.  The examiner noted painful motion caused functional loss, and that there was evidence of pain on weight bearing.  The Veteran was able to perform repetitive use testing without additional loss of function or range of motion.  There was no evidence of radiculopathy, and no spinal ankylosis.  There were no neurological abnormalities related to the thoracolumbar spine.  The appellant's thoracolumbar spine was judged to impact the claimant's ability to work in that he was unable to do any activities that require prolonged standing, heavy lifting, or other strenuous activities.

Examination of the Veteran's cervical spine revealed the following on range of motion study: normal forward flexion to 45 degrees, extension to 20 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral flexion to 45 degrees.  There was evidence of pain with weight bearing, as well as with forward flexion and extension.  There was no evidence of localized tenderness or pain on palpation of the joint, or associated soft tissue of the cervical spine.  The Veteran was able to perform repetitive testing without additional loss of function.  The Veteran did not show evidence of a cervical muscle spasm, but that did not result in abnormal gain or abnormal spine contour.  His muscle strength was normal, and there was no cervical ankylosis.  There were no neurological abnormalities related to his cervical spine condition.  The Veteran did not have a cervical intervertebral disc syndrome.

The Board recognizes that, under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the Diagnostic Codes.  "Functional loss" may occur as a result of weakness or pain on motion.  Here, pain on weight-bearing was reported, as well as functional loss in both the cervical and thoracolumbar spine.  However, there is no evidence of a disability picture that is commensurate to a limitation of spinal motion to the extent necessary to establish entitlement to a higher disability rating.  See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5260 and 5261.  In this regard, the Board emphasizes that the 20 percent rating already contemplates the Veteran's symptoms which constitute functional loss.

The preponderance of the evidence is against finding that the criteria for higher ratings for the Veteran's lumbar and cervical disabilities have been met.  The appeal is denied.

III. Urethrostenosis

The Veteran contends that an increased evaluation is warranted for his urethrostenosis.  Under Diagnostic Code 7518, Stricture of the urethra is rated as voiding dysfunction.  Voiding dysfunction, rated as urine leakage, urinary frequency, or obstructed voiding, is evaluated as follows:

Urine leakage (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence) Requiring the wearing of absorbent materials which must be changed less than 2 times per day (20 percent).  Urine leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day (40 percent). 

Urinary frequency where there is evidence that the daytime voiding interval is between one and two hours, or; when the veteran is awakened to void three to four times per night (20 percent).  When the daytime voiding interval is less than one hour, or; when the veteran is awakened to void five or more times per night (40 percent).  

Obstructed voiding:  Where there is evidence of urinary retention requiring intermittent or continuous catheterization a 30 percent rating is assigned.  38 C.F.R. § 4.115a.

The Veteran was afforded a VA examination in March 2016.  The Veteran was noted to have voiding dysfunction that did not require the use of absorbent materials.  The VA examination noted a history of a daytime voiding interval between 2 and 3 hours, and nighttime awakening to void between 3 to 4 times.  There were no signs or symptoms of obstructed voiding, and no evidence of a need for intermittent catheterization.  In light of this evidence the Board finds that the Veteran's urethrostenosis does not warrant a rating in excess of 20 percent at any time during the period of appeal.  Hence, the claim is denied.

New and Material Evidence

The Veteran contends that he has a current left side and hand weakness disability due to service and that new and material evidence has been submitted.  

In a June 1986 Board decision, entitlement to service connection for left side and hand weakness was denied because the evidence did not show that left side and hand weakness existed.  The Veteran did not submit a motion for reconsideration of the June 1986 Board decision.  Therefore, the June 1986 Board decision is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.1100.  

Generally, a claim which has been denied in an unappealed Board decision may not thereafter be reopened and allowed.  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118. 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).
At the time of the June 1986 Board decision, the evidence of record included, in part, the Veteran's medical records and which did not reveal a left hand and side weakness that was attributable to the Veteran's military service.   

The additional evidence received since the June 1986 Board decision include various service treatment records dated between May 1953 to May 1982.  Significantly, none of these records show complaints, findings or complaints regarding a left hand and side weakness. As such, these records are not pertinent.

No additional medical evidence has been submitted since June 1986 regarding left side and hand weakness.  The Board considered the Veteran's lay statements describing left hand and side weakness, and while he is competent to describe his symptoms, it has not been shown that he is otherwise qualified through specialized education, training or experience to offer a medical opinion as to the etiology of his symptoms. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

These submitted statements contain no evidence other than that which was previously submitted.  That is, they provide no evidence connecting a left hand and side weakness to service or a service connected disability.  38 C.F.R. §§ 3.156 (a), 3.317.

As submitted records do not relate to an unestablished fact, namely identifying an in-service event or injury related to left hand and side weakness, or evidence of a nexus between the Veteran's claimed left hand and side weakness and an in-service injury, the criteria for reopening the claim have not been met.  Although the evidence may be new, it is not material and the claim is not reopened.  38 U.S.C. § 5108.  

As new and material evidence has not been received the benefit-of-the-doubt doctrine does not apply, and the petition to reopen must be denied.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).


ORDER

Entitlement to a compensable initial disability rating for facial and earlobe scars is denied.

Entitlement to an increased rating for lumbosacral spine arthritis is denied.

Entitlement to an increased rating for cervical spine arthritis is denied.

Entitlement to an increased rating for urethrostenosis is denied.

The claim of entitlement to service connection for left side and hand weakness is not reopened, and the appeal is denied.


REMAND

The Veteran was afforded VA examinations in March 2016 for his hip and knee disorders.  Significantly, in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.  

A review of the March 2016 VA examination range of motion findings does not specify whether the motion shown represented active or passive motion.  In addition, the VA examination reports do not specify whether the range of motion findings are weight-bearing or nonweight-bearing.  As these examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, the Veteran should be afforded a new VA examination before a decision can be rendered on his claim. 

In April 2012 the Board determined that the claim of entitlement to special monthly compensation for loss of use of a creative organ must be remanded for additional consideration by the RO.  The Veteran's special monthly compensation claim includes a claim of entitlement to service connection for erectile dysfunction, secondary to urethrostenosis.  The Board found that this claim was inextricably intertwined with the special monthly compensation issue on appeal.  As the issue of entitlement to service connection for erectile dysfunction had not been adjudicated the Board referred the claim of entitlement to service connection for erectile dysfunction to the RO for appropriate action.

Since the Board's remand the RO did not adjudicate the claim of entitlement to service connection for erectile dysfunction.  Consequently, the Board finds that it must defer any determination as to the claim for special monthly compensation until the RO has had an opportunity to address the erectile dysfunction matter.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the nature and severity of his bilateral hip and knee disorders.  The examiner is to be provided access to the VBMS file, the Virtual VA file and a copy of this remand.  The examiner must specify in the examination report that the Virtual VA and VBMS files have been reviewed.  The examiner must address the following:

a). Conduct all necessary tests to determine the current nature and severity of the Veteran's bilateral hip and knee disorders.  The examiner must specifically test the range of active motion, passive motion, weight-bearing motion, nonweight-bearing motion, and, if possible, with range of motion measurements of the opposite joint.  If the examiner is unable to conduct the required testing or concludes that the required testing is not possible in this case, he or she should clearly explain why that is so. 

b). Please review the Veteran's medical history and lay statements, and separately describe the impact of his left hip disability, right hip disability, left knee disability and right knee disability on his occupational functioning, including their impact on his activities of daily living and ability to obtain and maintain employment.

A complete, well-reasoned rationale must be provided for any opinion offered.  If the requested opinion cannot be rendered without resorting to speculation, the examiner must state 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 the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.

2. The Veteran is hereby notified that it is his responsibility to report for any scheduled examinations and to fully cooperate to the best of his ability in the development of the claim.  The consequences for failure to report for any VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any notice that was sent was returned undeliverable. 

3. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this remand.  The RO must ensure that the examiner documented their consideration of VBMS and Virtual VA records.  If any report is deficient in any manner, corrective procedures must be implemented at once.

4. Then readjudicate the Veteran's claims based on the entirety of the evidence.  The RO must adjudicate the issue of entitlement to service connection for erectile dysfunction.  The Veteran should understand that should the claim of entitlement to service connection for erectile dysfunction be denied, the Board would only exercise appellate jurisdiction if he perfects a timely appeal.  If the benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or 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 (2012).



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs