Citation Nr: 1808770 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-00 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative joint disease, L4-5, S-1 with arthritic changes. 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected degenerative joint disease, L4-5, S-1 with arthritic changes. 4. Entitlement to service connection for left knee degenerative joint disease, to include as secondary to service-connected degenerative joint disease, L4-5, S-1 with arthritic changes. 5. Entitlement to service connection for malaria. 6. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and JK ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to March 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of September 2010 and August 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2017, the Veteran and JK testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. 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). REMAND Regrettably, the Board finds that a remand is necessary of all claims. First, the record reflects that the Veteran seeks regular VA treatment, but the most recent VA treatment notes are dated in October 2013. Thus, all VA treatment notes dated from October 2013 to the present should be added to the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). With regard to the increased rating claims, the most recent VA examinations were performed in August 2013, over four years ago. The Board determines that in this case the passage of time has rendered those results too remote to serve as a basis for adjudicating the appropriate ratings for the Veteran's back and right lower extremity radiculopathy disabilities for the entire appeal period. Further, the United States Court of Appeals for Veterans Claims (Court) holding in Correia v. McDonald, 28 Vet. App. 158 (2016) renders the back examinations of record incomplete. The Court in Correia held that 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, range of motion measurements of the opposite undamaged joint. Moreover, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court explained that VA examiners must do all that can be reasonably done to become informed about a veteran's reported musculoskeletal flare-ups prior to providing an opinion on functional loss during flares. The Court found that an examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, before assessing the functional loss during flares. The back examination reports of record do not meet these requirements. Accordingly, scheduling another VA examination to assess the severity of the Veteran's back and right lower extremity radiculopathy disabilities is warranted. With regard to the Veteran's GERD claim, there are additional outstanding treatment notes that should be obtained. VA treatment notes dated in February 1998 and October 2001 reference GI testing that was performed in New Jersey in 1995. The earliest treatment notes in the claims folder are dated in 1996. Therefore, the Veteran should be asked to identify the provider for his GI testing and treatment in 1995 and the treatment records should be associated with the claims file. In addition, the August 2010 VA examiner stated that the Veteran had a normal EGD in 2008 with no evidence of gastritis or reflux disease and that the diagnosis of GERD was based primarily on subjective presentation. The examiner also indicated that the significant risk factor for GERD is obesity and that the Veteran used to weigh 225 to 227 pounds. Therefore, the examiner concluded that it is less likely as not that the Veteran's GERD was due to his service-connected back disability. However, the examiner also noted that the Veteran continues to take medication for GERD, but did not address whether there is a more appropriate diagnosis for the Veteran's symptoms or discuss the etiology of the apparent continued symptomatology for which the Veteran takes medication. Further, as noted above, there are outstanding, relevant treatment records for the Veteran's GERD, and so the examiner lacked a complete factual background for the Veteran's disability when forming the opinion. Consequently, the Board determines that another VA examination should be performed to assess the existence and etiology of the Veteran's gastrointestinal disability. The left knee was examined in August 2010 and August 2013, but only the August 2010 VA examiner addressed the question of etiology. Further, that examiner merely stated that that the Veteran's knee degenerative joint disease is not related to the service-connected back disability. The examiner offered no rationale for this statement and also did not separately address the questions of causation and aggravation of the left knee disability by the back disability. As a result, the left knee examinations of record are inadequate, and the Veteran should be afforded another VA examination of the left knee. The service connection claim for malaria was denied in an August 2013 rating decision. In November 2013, the Veteran filed a VA Form 9 on which he disagreed with the denial of the malaria claim. No action appears to have been taken by the RO with regard to this submission, and in November 2017, the Veteran's representative submitted an explicit request that the November 2013 VA Form 9 be accepted as a notice of disagreement (NOD). Presently, VA will only accept a VA Form 21-0958 as an NOD. 38 C.F.R. § 20.201 (2017). However, that requirement did not take effect until March 24, 2015. Thus, at the time the Veteran filed the VA Form 9, the only requirements for an NOD were that it express disagreement or dissatisfaction with an RO decision and a desire to contest the determination. 38 C.F.R. § 20.201 (2013). The November 2013 VA Form 9 meets these requirements. Therefore, a statement of the case (SOC) must be issued in response. Manlincon v. West, 12 Vet. App. 238 (1999). Finally, the outcome of the Veteran's claim of entitlement to TDIU is dependent, at least in part, on the outcome of the increased rating and service connection claims. Therefore, the Board also remands this issue as inextricably intertwined with the other claims on appeal. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include records relevant to the Veteran's 1995 treatment for GI symptoms in New Jersey and VA treatment notes dated from October 2013 to the present. 2. The Veteran should be afforded the appropriate VA examination to determine the degree of severity of his back and right lower extremity disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. The examiner must provide accurate and fully descriptive assessments of all symptoms and must comment upon the frequency and severity of the Veteran's symptoms in accordance with VA rating criteria. The examiner must provide all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of flare-ups, and then provide an assessment of the functional loss during flares-in degrees of motion lost, if possible. If the examiner is unable to conduct any needed testing or concludes that testing is not necessary, the examiner should clearly explain why that is so. The examiner should also comment as to whether the functional effects of the Veteran's back disability and/or right lower extremity radiculopathy affected his ability to secure and follow a substantially gainful occupation consistent with his education and occupational experience at any time during the appeal period. The examiner must not consider the Veteran's age or any non-service connected disabilities. 3. The Veteran should be afforded an examination by a physician with sufficient expertise to determine the nature and etiology of all left knee disabilities present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. Based on the review of the record and examination of the Veteran, the examiner should state a medical opinion with respect to each left knee disability present during the period of the claim as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the disorder originated during active service or is otherwise etiologically related to active service. If the answer to the above is negative, the examiner should state an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that any left knee disability is caused or aggravated beyond normal progression by a service-connected disability? The examiner should also comment as to whether the functional effects of the Veteran's left knee disability affected his ability to secure and follow a substantially gainful occupation consistent with his education and occupational experience at any time during the appeal period. The examiner must not consider the Veteran's age or any non-service connected disabilities. For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran's competent reports of any claimed injury or of symptoms experienced during active service and since. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. The Veteran should be afforded an examination by a physician with sufficient expertise to determine the existence and etiology of any gastrointestinal disability present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. Based on the review of the record and examination of the Veteran, the examiner should state a medical opinion with respect to any gastrointestinal disability present during the period of the claim as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the disability originated during active service or is otherwise etiologically related to active service. If the answer to the above is negative, the examiner should state an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that any gastrointestinal disability was caused or aggravated beyond normal progression by a service-connected disability, to include medication the Veteran takes for his service-connected back disability. The examiner should also comment as to whether the functional effects of the Veteran's gastrointestinal disability affected his ability to secure and follow a substantially gainful occupation consistent with his education and occupational experience at any time during the appeal period. The examiner must not consider the Veteran's age or any non-service connected disabilities. For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran's competent reports of any claimed injury or of symptoms experienced during active service and since. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Readjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a supplemental SOC should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. 6. Issue an SOC in response to the November 2013 NOD with the August 2013 rating decision denying service connection for malaria. Inform the Veteran that if the claim is denied, a Substantive Appeal must be filed in order for the Board to review the appeal of the issue. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).