Citation Nr: 18106926
Decision Date: 06/01/18	Archive Date: 05/31/18

DOCKET NO. 13-06 111
DATE:	June 1, 2018
REMANDED
Entitlement to an initial rating in excess of 10 percent prior to March 24, 2014, and in excess of 20 percent from March 24, 2014, forward, for lumbar strain is remanded.
Entitlement to an initial compensable rating for residual dyspnea with chest pain status-post resolved rib injury, left mid-anterior rib separation is remanded.
Entitlement to a rating in excess of 30 percent for residual headaches status-post stenting of a left temporal aneurysm is remanded.
Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy associated with lumbar strain is remanded.
Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome of the left knee is remanded.
Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded.
Entitlement to an initial rating in excess of 10 percent for residuals of status-post fracture of the fourth and fifth metatarsals, left foot is remanded.
Entitlement to an initial rating in excess of 30 percent for insomnia with dysthymic disorder and intermittent explosive disorder is remanded.
Entitlement to total disability based on individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from January 2005 to December 2009.
Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 
1. Entitlement to an initial rating in excess of 10 percent prior to March 24, 2014, and in excess of 20 percent from March 24, 2014, forward, for lumbar strain is remanded.
In February 2014, the RO granted service connection for lumbar strain with a 10 percent initial rating, effective as of March 20, 2013. In a March 2015 rating decision, the RO granted a 20 percent rating for the low back disability, effective as of March 24, 2014. In May 2015, the Veteran submitted a standard notice of disagreement form for the ratings assigned for the low back.  
The Board remanded the matter for issuance of a Statement of the Case (SOC) in December 2015.  The RO has not provided an SOC as to the Veteran’s dispute of the rating assigned for the low back disability; therefore, the issue must be remanded.  See Manlincon v. West, 12 Vet. App. 238, 240 (1999); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. §§ 20.201, 20.302 (2017).
2. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy associated with lumbar strain is remanded.
As with the Veteran’s increased-rating claim for a low back disability, in February 2014, the RO granted a separate rating of 20 percent for right lower extremity radiculopathy, effective as of March 20, 2013. In a March 2015 rating decision, the RO denied a higher rating for right lower extremity radiculopathy, and in May 2015, the Veteran submitted a standard notice of disagreement form for the rating assigned for the right lower extremity radiculopathy.  
The Board remanded the matter for issuance of a Statement of the Case (SOC) in December 2015.  The RO has not provided an SOC as to the Veteran’s dispute of the rating assigned for right lower extremity radiculopathy; therefore, this issue must be remanded as well.  See Manlincon and Stegall, both supra; 38 C.F.R. §§ 20.201, 20.302 (2017).
3. Entitlement to an initial compensable rating for residual dyspnea with chest pain status-post resolved rib injury, left mid-anterior rib separation is remanded.
Following an October 2010 rating decision, the Veteran submitted a timely notice of disagreement in September 2011 to initiate an appeal from the assignment of a noncompensable initial rating for dyspnea and residuals of left rib injury. 
The Board remanded the matter for issuance of a SOC in December 2015.  The RO did not provide an SOC, and this issue is also remanded.  See Manlincon and Stegall, both supra; 38 C.F.R. §§ 20.201, 20.302 (2017).
4. Entitlement to a rating in excess of 30 percent for residual headaches status-post stenting of a left temporal aneurysm is remanded.
In a March 2015 rating decision, the RO denied an increased rating for headaches. The Veteran submitted a timely standard notice of disagreement form for this issue in May 2015. The Board remanded the matter for issuance of a SOC in December 2015.  The RO did not provide an SOC and this issue is also remanded.  See Manlincon and Stegall, both supra; 38 C.F.R. §§ 20.201, 20.302 (2017).


5. Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome of the left knee is remanded.
The Veteran was last afforded an examination pertaining to his service-connected left knee disability in May 2016. Review of this examination report reveals that range of motion testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted.  See May 2016 VA Examination.
The Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), 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 conditions, and, if possible, with range of motion measurements of the opposite undamaged joint. 
Accordingly, the Board finds a VA examination should be obtained that addresses the nature and severity of his service-connected left knee disability, to include consideration of the requirements in Correia.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).
6. Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded.
The Veteran was last afforded an examination pertaining to his service-connected right knee disability in May 2016. Review of this examination report reveals that range of motion testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted.  See May 2016 VA Examination. 
Accordingly, the Board finds a VA examination should be obtained that addresses the nature and severity of his service-connected right knee disability, to include consideration of the requirements in Correia.  See Barr, 21 Vet. App. 311-12.


7. Entitlement to an initial rating in excess of 10 percent for residuals of status-post fracture of the fourth and fifth metatarsals, left foot is remanded.
The Veteran was last afforded an examination pertaining to his service-connected left foot disability in May 2016. Review of this examination report reveals that range of motion testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted.  See May 2016 VA Examination. 
Although the diagnostic codes for foot disabilities are not predicated on range of motion, such testing may still help establish the severity of the condition.  See, e.g., 38 C.F.R. § 4.71a, Diagnostic Code 5284 (providing disability ratings for foot conditions that are identified as “moderate,” “moderately severe,” or “severe”).  Accordingly, the Board finds a VA examination should be obtained that addresses the nature and severity of his service-connected left knee disability, to include consideration of the requirements in Correia.  See Barr, 21 Vet. App. 311-12.
8. Entitlement to an initial rating in excess of 30 percent for insomnia with dysthymic disorder and intermittent explosive disorder prior to June 1, 2015 is remanded.
In a May 2013 rating decision, the RO granted service connection for dysthymic disorder and intermittent explosive disorder and evaluated it with the already service-connected disability of insomnia; thus, a single 30 percent rating was assigned for the psychiatric disability, effective from November 30, 2010. 
Following the December 2015 Board remand, VA obtained an opinion in June 2016 regarding the Veteran’s overall social and occupational impairment.  The June 2016 opinion found the Veteran manifested a total occupational and social impairment.  See June 2016 VA Opinion. Thereafter, the AOJ granted a 100 percent evaluation for dysthymic disorder, effective June 1, 2015.  See July 2017 Rating Decision.  Accordingly, the period prior to June 1, 2015 remains on appeal.  
The Veteran disagreed with the effective date of the 100 percent evaluation and contended he manifested a total occupational and/or social impairment since discharge.  See April 2018 Statement in Support of Claim.  The Veteran also asserted that VA failed to assist him in developing his claim.  The Board notes the June 2016 VA opinion is unclear as to when the examiner found the Veteran manifested a total occupational and social impairment; the examiner stated the Veteran manifested this degree of disability as of the date of the exam, but also referenced employment records from June 2015.  Considering the Veteran’s April 2018 contentions and the lack of clarity in the June 2016 VA opinion, the Board finds an additional opinion is warranted to assess the severity of the Veteran’s psychiatric disability during of the pendency of the appeal.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c)(2); Barr, 21 Vet. App. at 311.
The Board also notes the Veteran received treatment throughout the pendency of the appeal from numerous VA facilities, including Lexington, Salt Lake, Denver, Biloxi, and Washington VA medical centers.  These records are relevant to the Veteran’s initial evaluation as they relate to the timeframe shortly after separation. 
The RO should make appropriate attempts to identify and obtain all VA treatment records available. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 
9. Entitlement to total disability based on individual unemployability (TDIU) is remanded.
Regarding a TDIU prior to June 1, 2015, the outcome may be largely dependent on the effects of the Veteran's service-connected psychiatric condition during that time.  As that matter is being remanded for clarification of the Veteran's prior symptoms, the further development and readjudication of the Veteran’s insomnia with dysthymic disorder and intermittent explosive disorder claim may affect the resolution of the TDIU claim. The issues are inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998).  
Finally, the Board notes that the Veteran submitted a VA Form 21-8940 that listed his last day worked as January 1, 2010.  See February 2013 Application.   He also submitted employment records showing employment until as late as September 2015.  Accordingly, the Veteran should again be advised to submit a VA Form 21-8940 and submit any related employment records, or information and authorization to obtain any relevant records.  The duty to assist is a two-way-street.  Wood v. Derwinski, 1 Vet. App 190, 193 (1991). 
The matters are REMANDED for the following action:
1. Undertake appropriate development to obtain ALL outstanding VA treatment records that have not been associated with the claims file.
2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected bilateral knee disabilities. The claims file should be made available to the examiner for review in connection with the examination. 
The examiner must include range of motion testing of the left and right knees in the following areas:
a. Active motion;
b. Passive motion;
c. Weight-bearing; and
d. Nonweight-bearing.
The examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the left and/or right knees are used repeatedly over a period of time. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 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 explain why that is so. The examiner is asked to describe whether pain significantly limits functional ability during flares, or if pain has significantly limited functional ability during flares and if so, the examiner must estimate range of motion during flares. 
IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. 
If there is no pain and/or no limitation of function, such facts must be noted in the report.
3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected left foot disability. The claims file should be made available to the examiner for review in connection with the examination. 
The examiner must include range of motion testing of the left foot in the following areas:
a. Active motion;
b. Passive motion;
c. Weight-bearing; and
d. Nonweight-bearing.
The examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the left foot is used repeatedly over a period of time. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 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 explain why that is so. The examiner is asked to describe whether pain significantly limits functional ability during flares, or if pain has significantly limited functional ability during flares and if so, the examiner must estimate range of motion during flares. 
IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. 
If there is no pain and/or no limitation of function, such facts must be noted in the report.
4. Provide a Statement of the Case on the issues of entitlement a compensable rating for dyspnea and residuals of the left rib condition; a higher rating for lumbar strain; a higher rating for right lower extremity radiculopathy; and a higher rating for headaches. These issues should not be certified or returned to the Board, unless a timely substantive appeal is received.
5. The AOJ should forward the appropriate forms, VA Form 21-8940 and VA Form 21-4192 for completion. Any relevant employment records identified should be obtained.
6. After obtaining any available evidence and records regarding the Veteran’s periods of employment without pay, to the extent possible, forward the entire claims file to a VA psychiatric examiner for opinion regarding the severity of the Veteran’s psychiatric disability. (A full VA examination is not required unless it is deemed necessary by the examiner, or due to additional evidence.)
The examiner should review the VA and private treatment record, work documents submitted in October 2015, the Veteran’s April 2018 statements, the July 2015 and June 2016 VA psychiatric examinations, and any other documents that may be received upon remand.
Please provide the following opinion: Whether the Veteran manifested a total occupational impairment since discharge from active duty that is attributable to service-connected insomnia with dysthymic disorder and intermittent explosive disorder?
If the examiner rejects the Veteran’s April 2018 lay reports, a reason must be provided. Lay statements cannot be rejected due solely to a lack of medical documentation, although this may be considered with the other evidence. 
If the examiner is unable to provide any requested opinion without resort to speculation, the examiner should explain whether the inability to provide the needed opinion is due to the limits of the examiner’s medical knowledge; the limits of the knowledge of the medical profession in general; or whether there is specific additional evidence, which if obtained, would enable the examiner to provide the needed opinion.
 
A. S. CARACCIOLO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Trickey, Jonathan