Citation Nr: 20006882 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 08-37 501 DATE: January 28, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent for lower back strain prior to August 14, 2012 is remanded. Entitlement to a disability rating in excess of 20 percent for lower back strain from August 14, 2012 is remanded. Entitlement to a disability rating in excess of 10 percent for left testicular cyst and varicose is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to August 1977 and served in the Kansas National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for lower back strain prior to August 14, 2012 is remanded. The Board finds that remand is necessary to properly comply with the previous remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In the November 2017 remand decision, the Board requested a retrospective medical opinion pertaining to the VA examinations conducted during this appeal period in order to comply with Correia. See, e.g., Chotta v. Peake, 22 Vet. App. 80 (2008); Correia v. McDonald, 25 Vet. App. 158 (2016). This retrospective medical opinion has not been obtained. As a result of this failure, the AOJ did not substantially comply with the Board’s prior remand directives. Therefore, another remand is warranted to obtain the requested retrospective medical opinion. Stegall, 11 Vet. App. at 271. 2. Entitlement to a disability rating in excess of 20 percent for lower back strain from August 14, 2012 forward is remanded. The matter of entitlement to a disability rating in excess of 20 percent for lower back strain from August 14, 2012 is inextricably intertwined with the matter of entitlement a disability rating in excess of 10 percent for lower back strain prior to August 14, 2012. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, this claim must also be remanded. 3. Entitlement to a disability rating in excess of 10 percent for left testicular cyst and varicose is remanded. The Board finds that remand is necessary to properly comply with the previous remand instructions. See Stegall, supra. The Veteran has stated that he was experiencing urinary symptoms and, in the November 2017 remand decision, the Board requested that the Veteran be afforded a VA medical opinion as to whether his claimed urinary symptoms are related to his service-connected left testicular cyst and varicose. Unfortunately, such the requested examination and opinion were not obtained; therefore, remand is necessary to properly comply. 4. Entitlement to service connection for a left knee condition is remanded. The Board finds that remand is necessary to properly comply with the previous remand instructions. See Stegall, supra. In the November 2017 remand decision, the Board request a medical opinion to determine if the Veteran’s left knee condition was related to his military service. The Board specifically requested that the VA examiner address the Veteran’s lack of treatment in service, as well as his contention that he developed this condition due to his physical duties in service. Although the Veteran was afforded a VA examination as to his left knee in July 2018, the examiner failed to address the identified contentions. Specifically, the examiner failed to address the Veteran’s lay statements concerning the onset of his left knee disability. As such, remand of this matter is required in order to comply with the November 2017 remand instructions. The Board additionally notes that the Veteran has also stated that he uses his left knee to compensate for his service-connected right knee condition. Therefore, upon remand, an opinion should also be obtained to determine if the Veteran’s left knee condition is caused by or aggravated by his service-connected right knee condition. 5. Entitlement to service connection for a bilateral foot condition is remanded. The Board finds that remand is necessary to properly comply with the previous remand instructions. See Stegall, supra. Previously, the Veteran was denied service connection as he did not have a confirmed diagnosis for his bilateral foot disability. See the rating decision dated December 2007. Treatment records show that the Veteran was diagnosed with pes planus, left calcaneal spur, and swelling in the right fifth toes. He contended that he developed these conditions as a result of his military service and specifically due to wearing boots. Pursuant to the November 2017 Board Remand, a VA medical opinion was obtained in July 2018 to address the etiology of the Veteran’s diagnosed bilateral foot disability. The examiner provided a negative nexus opinion with rationale limited to the following: “[t]here is no evidence of foot problems during service, no chronicity of care established. No nexus established.” The July 2018 VA examiner’s limited rationale failed to address the Veteran’s contentions concerning the incurrence of his bilateral foot disability during service due to wearing boots. Accordingly, the Board finds that remand is necessary to properly address the Veteran’s contentions. Further, medical records show that the Veteran has numbness that radiates from his back through his feet. Upon remand, the VA examiner should also address whether the Veteran’s current bilateral feet disability is related to his service-connected low back strain. 6. Entitlement to a total disability rating based on individual unemployability is remanded. An August 2017 treatment record noted the Veteran’s report that he had to retire due to his service-connected back strain. Accordingly, the Board finds that the matter of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a TDIU is part of an increased rating claim when raised by the record). The Board finds that remand is necessary for proper development of this claim as the Veteran has not submitted information regarding his current employment situation. Upon remand, the RO should ask the Veteran to provide VA Form 21-4192, Request for Employment Information. Further, this issue is inextricably intertwined with the issues above because a separate and/or additional rating for the back, left testicular cyst and varicose, left knee, and bilateral feet disabilities may impact the Veteran’s entitlement to a TDIU. Accordingly, this issue must also be remanded. See Harris, supra. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for the lower back, left testicular cyst and varicose, left knee, and bilateral feet disabilities. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Ask the Veteran to provide VA Form 21-4192, Request for Employment Information, in connection with his claim for TDIU. 3. Refer the VA claims file to a medical professional with appropriate expertise to provide a retrospective opinion as to the service-connected lower back strain. If an examination is deemed necessary in the judgment of the examiner designated to provide the addendum opinion, one should be arranged. The claims file must be made available to the examiner for review in connection with the examination. The VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or non-weight-bearing can be estimated for the other VA examinations conducted during the appeal period in September 2007, September 2009, and August 2012. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. 4. Schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his left testicular cyst and varicose. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. In particular, the examiner should address whether the Veteran’s service-connected left testicular cyst and varicose are productive of voiding dysfunction and renal dysfunction. If so, he or she should report the findings necessary to evaluate such dysfunction. If not, the examiner should provide rationale for the finding that any reported symptoms are not attributable to this service-connected disability. The examiner should also indicate whether the Veteran has persistent edema, stasis pigmentation or eczema, subcutaneous induration, persistent ulceration, or massive board-like edema with constant pain. 5. The claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current left knee onset during service or is otherwise related to an in-service injury, event, or disease, to include his report that he suffered it during his active duty and reserve service. The examiner should also address whether any current disability of the left knee is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) his service-connected right knee disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiner should clearly so state and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current bilateral foot disability onset during service or is otherwise related to an in-service injury, event, or disease, to include due to his service boots. The examiner should also address whether any current disability of the bilateral feet is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected low back strain. The need for an examination is left to the discretion of the examiner. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiner should clearly so state and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Shuster, Attorney Advisor 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.