Citation Nr: 20003345 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 13-34 622 DATE: January 14, 2020 REMANDED Entitlement to service connection for a back disorder, including as secondary to the service-connected right knee disorder, is remanded. Entitlement to service connection for a right hip disorder, including as secondary to the service-connected right knee disorder, is remanded. Entitlement to service connection for a right foot disorder, including as secondary to the service-connected right knee disorder, is remanded. Entitlement to a rating in excess of 20 percent for service-connected right knee injury residuals (dislocation) is remanded. Entitlement to a total disability rating due to individual employability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 17, 1964 to October 16, 1964. He also had active duty for training (ACDUTRA) from January 12, 1969 to January 24, 1969, as well as periods of inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2017, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In January 2018, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. 1. Entitlement to service connection for a back disorder, including as secondary to the service-connected right knee disorder, is remanded. 2. Entitlement to service connection for a right hip disorder, including as secondary to the service-connected right knee disorder, is remanded. 3. Entitlement to service connection for a right foot disorder, including as secondary to the service-connected right knee disorder, is remanded. Following the Board’s January 2018 remand, the Veteran underwent examinations to determine the nature and etiology of his back, right hip, and right foot disorders. Following an in-person examination, the examiner opined that it was less likely than not that these conditions were aggravated by or secondary to the Veteran’s service-connected right knee disorder. The examiner rationalized, in pertinent part, that these conditions were the result of the Veteran’s post-service career as a mail carrier. See April 2019 Medical Opinion Disability Benefits Questionnaire (DBQ). The Board finds the April 2019 opinions inadequate, as they merely rely on the absence of evidence in the Veteran’s claims file. Additionally, the examiner did not provide a rationale as to why the Veteran’s service-connected right knee disorder did not aggravate his back, right hip, and right foot disorders. On remand, an addendum medical opinion should be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination is adequate). 4. Entitlement to a rating in excess of 20 percent for service-connected right knee injury residuals (dislocation) is remanded. As to the Veteran’s claim for an increased disability rating for his right knee, the Board also finds that a new VA examination must be provided that complies with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. The April 2019 VA examiner stated there was no basis to offer an estimate as to the additional losses of function or range of motion after repetitive use or during a flare-up. The examination report reflects that the Veteran experiences limited range of motion with prolonged positions and with weightbearing. As stated above, Sharp requires an estimate on additional loss of range of motion based on all available evidence, including the Veteran’s statements. As the April 2019 examiner did not provide this estimate, or clarify what information is required to make such an estimate, an additional VA examination is required. 5. Entitlement to a total disability rating due to individual employability (TDIU) is remanded. Since the TDIU claim is inextricably intertwined with the remaining service connection and increased rating claims, it is also being remanded. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (claims are inextricably intertwined when they have common parameters, such as when the outcome of one may affect the outcome of the other. And to avoid piecemeal adjudication of these types of claims, they should be considered together). Finally, as this matter is being remanded, an additional effort to obtain the Veteran’s medical and legal records associated with his lawsuit against the postal service should be made. The matters are REMANDED for the following action: 1. Make arrangements to obtain all medical and legal records associated with the Veteran’s lawsuit against the postal service, i.e., Workman’s Compensation claim. 2. Thereafter, schedule the Veteran for an appropriate VA examination to assess the severity of his service-connected right knee disorder. The entire claims file must be reviewed by the examiner in conjunction with the examination. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examination should be performed with an appropriate Disability Benefits Questionnaire (DBQ). The examiner is to specifically test the range of motion of the knees in active motion, passive motion, weight-bearing, and nonweight-bearing. 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 must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. All examination findings, along with a complete rationale for all opinions expressed, must be set forth in the examination report. 3. Arrange for the April 2019 VA examiner to provide an addendum medical opinion. If that VA examiner is no longer available, arrange for another appropriate medical professional to provide an opinion. The Veteran should not be scheduled for a VA examination unless deemed necessary by the VA medical opinion provider. Following a review of the claims files, the VA examiner should opine on the following: (a) Whether it is at least as likely as not that the Veteran’s back disorder, right hip disorder, and right foot disorder were caused by his right knee disorder to include by any alteration in gait associated therewith? (b) Whether it is at least as likely as not that the Veteran’s back disorder, right hip disorder, and right foot disorder is/are aggravated by (i.e., underwent any incremental increase in disability, regardless of its permanence) his right knee disorder to include by any alteration in gait associated therewith? Of note, concerning aggravation, the term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Additional disability due to flareups of musculoskeletal disabilities, even if it cannot be quantified, or an incremental increase in pain might constitute an increase in disability, or aggravation, for the purposes of secondary service connection. A complete rationale should be provided for all opinions stated. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.