Citation Nr: 20009946 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 14-25 754 DATE: February 6, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected left knee patellar pain syndrome with osteoarthritis (hereinafter, service-connected left knee disability) is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected left ankle strain with history of a stress fracture of the left distal tibia (hereinafter, service-connected left ankle disability) is remanded. Entitlement to a compensable disability rating for service-connected reflex sympathetic dystrophy associated with patellar pain syndrome of the right knee is remanded. Entitlement to a higher rating for service-connected lumbar degenerative disc disease and mild spondylosis associated with patellar pain syndrome of the right knee (hereinafter, service-connected low back disability), currently evaluated as noncompensable (zero percent) prior to November 1, 2018, and as 10 percent disabling thereafter, to include propriety of a 10 percent baseline offset, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1989 to October 1992. This matter comes to the Board of Veterans' Appeals (Board) from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In a June 2014 Decision Review Officer (DRO) decision, the AOJ determined that it had been an error to evaluate the Veteran’s service-connected residuals, stress fracture, left distal fibula, separately from her service-connected left ankle strain. As such, the AOJ merged and recharacterized the issue on appeal as “left ankle strain with residuals, stress fracture, left distal fibula,” effective from June 3, 2014 – the date of the DRO decision. The Board has recharacterized the issue on appeal to reflect the AOJ’s actions. In July 2014, the Veteran requested to participate in a Board hearing conducted by a Veterans Law Judge (VLJ). However, in a February 2017 submission, the Veteran’s representative asserted that the Veteran wished to withdraw her prior hearing request. Accordingly, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). These appealed issues, among others, were previously remanded by the Board in June 2017 for further evidentiary and procedural development. The Board’s prior remand directives and the subsequent actions by the AOJ will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration. In a March 2019 rating decision, the AOJ, among other actions that will be further discussed below, partially granted the Veteran’s appealed issues seeking higher evaluations for her service-connected low back and left ankle disabilities. The AOJ’s actions with respect to these issues created a “staged” initial evaluation regarding the Veteran’s service-connected low back disability and nullified the “staged” initial evaluation for her service-connected left ankle disability. As neither partial allowance represented a full grant of the benefits sought, the appealed issues remain in appellate status and have been recharacterized to reflect the AOJ’s creation and nullification of “staged” initial evaluations for these service-connected disabilities. Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Characterization of an issue on appeal In several statements throughout 2011, the Veteran’s representative asserted that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was part and parcel of the Veteran’s pending appeal seeking (1) service connection for a low back disability and (2) an increased evaluation for her service-connected right knee disability – both of which were on remand status from the Board and under the jurisdiction of the AOJ. In an August 2012 DRO decision, the AOJ established service connection for a low back disability; a noncompensable initial evaluation was assigned from February 11, 2005. The day after this DRO decision, before the Veteran and her representative were notified of such, an AOJ employee noted that the representative’s prior statements were being accepted as a claim for a TDIU, and part of developing such was to request VA examinations for each of the Veteran’s service-connected disabilities, including her low back disability. The Veteran was provided the requested VA examinations in September 2012, and the issues were adjudicated in the October 2012 rating decision – from which this appeal stems. As the September 2012 VA examination contains evidence pertinent to the Veteran’s service-connected low back disability and was associated with the file within the appeal period of the August 2012 DRO decision, the AOJ’s rating decision serves as a readjudication of the assigned initial evaluation for this disability. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). As such, the appeal before the Board concerning the Veteran’s service-connected low back disability is considered to be seeking a higher initial evaluation. Further, in a November 2019 statement, the Veteran’s representative asserted that the AOJ erred in evaluating the Veteran’s service-connected low back disability in the August 2012 DRO decision and all subsequent readjudications. Specifically, the Veteran’s representative advanced that the AOJ had improperly determined a baseline evaluation offset of the initial evaluation for this disability when determining that service connection was warranted under the theory of secondary service connection. As this issue is before the Board on appeal from the October 2012 rating decision, which, as discussed above, has subsumed the August 2012 rating decision to the extent that it assigned the initial evaluation for this disability, the representative’s argument cannot constitute a motion for revision based on Clear and Unmistakable Error (CUE), as the October 2012 rating decision is not final. Accordingly, the Board has recharacterized the issue on appeal to include the propriety of this baseline rating offset. Issues no longer before the Board The Board’s June 2017 remand also included the issue of entitlement to a TDIU. In the March 2019 rating decision, the AOJ, among other actions, established service connection for radiculopathy of the legs, and assigned separate 20 percent evaluations for these disabilities, and granted a TDIU; all awards effective from November 1, 2018. In an August 2019 Decision Review Request: Higher-Level Review (VA Form 20-0996), the Veteran elected to appeal the AOJ’s determinations concerning the initial evaluations assigned for her service-connected radiculopathy of the legs and the effective dates assigned for the awards of TDIU and service connection for radiculopathy of the legs via the Higher-Level Review lane in accordance with the Appeals Modernization Act (AMA). 84 Fed. Reg. 138, 169 (Jan. 18, 2019); 38 C.F.R. § 3.2601. In an October 2019 rating decision, the AOJ notified the Veteran that the higher-level reviewer discovered a “duty-to-assist” error impacting the Veteran’s appealed issues, and that further development was necessary. In a January 2020 rating decision, the AOJ readjudicated the issues that were appealed by the Veteran in August 2019; however, it appears that there is some confusion concerning the proper procedural status, as the January 2020 rating decision refers to the issues as “claims” rather than appeals, and states that the adjudication stems from a “request to reopen a previous claim” that was filed in October 2019. Notwithstanding the above, the Veteran’s August 2019 election into AMA regarding her appeals seeking an earlier effective dates and increased evaluations for her service-connected radiculopathy of the legs and TDIU also acted as a withdrawal of these appealed issues from the traditional appellate process. As such, although the appellate status of these issues with the AOJ is unclear, they are not currently before the Board. 1. Entitlement to a disability rating in excess of 10 percent for service-connected left knee disability 2. Entitlement to a disability rating in excess of 10 percent for service-connected left ankle disability 3. Entitlement to a compensable rating for service-connected reflex sympathetic dystrophy associated with patellar pain syndrome of the right knee 4. Entitlement to a higher rating for service-connected low back disability, currently evaluated as noncompensable prior to November 1, 2018, and 10 percent disabling thereafter, to include propriety of a 10 percent baseline offset In pertinent part, the Board remanded the Veteran’s claims in June 2017 because the prior VA examinations regarding these disabilities were inadequate under the United States Court of Veteran’s Appeals’ (the Court’s) holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Consequent to the Board’s June 2017 remand directives, the Veteran was provided VA examinations of her left ankle, low back, and knees in November 2018. Unfortunately, another remand is necessary because the November 2018 VA examination reports are inadequate for the purpose of readjudicating the issues on appeal. Specifically, while the November 2018 VA examination reports reflect that the Veteran experiences flare-ups of right knee, low back, and left ankle symptoms, and such result in additional limitation of motion due to pain, this additional functional loss is not quantified as is necessary under the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). The Board notes that this critical rating question must be answered contemporaneously and retrospectively throughout the entirety of the appeal period for each issue. Chotta v. Peake, 22 Vet. App. 80 (2008). Further, as discussed above, the Veteran’s representative has asserted that the evidence of record is insufficient to accurately establish a baseline for the Veteran’s service-connected low back disability to be used as a rating offset. Indeed, the September 2011 VA opinion on which service connection for this disability was established specifically states “The data in the records is both conflicting and insufficient to determine a baseline in regards to low back symptoms … prior to … aggravation.” Although the Board is the ultimate finder of fact concerning this issue, the medical matter involved in determining the severity of low back symptoms is beyond the Board’s purview. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As such, a retrospective opinion addressing this critical matter must be obtained on remand. Chotta, supra. Finally, so the VA examiner is fully apprised of the Veteran’s complete disability picture, outstanding and pertinent VA and private treatment records must be sought, obtained, and associated with the Veteran’s file prior to the VA examination. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the claims file all updated records of VA treatment relating to the disabilities subject to the issues being remanded. 2. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated her for the disabilities subject to the issues being remanded. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 3. Thereafter, the AOJ must schedule the Veteran for an appropriate VA examination to evaluate her service-connected reflex sympathy dystrophy of the right knee and disabilities of the low back, left ankle, and left knee. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of the manifestations of the Veteran’s service-connected reflex sympathy dystrophy of the right knee and disabilities of the low back, left ankle, and left knee. *In addition to the information requested by the standard DBQ relating to disabilities of the ankle, knees, and low back, the examiner must specifically address the following: - Provide all range-of-motion findings (expressed in degrees) pertinent to rating the low back, ankle, and knees during a flare-up of symptoms, currently and retrospectively. In doing so, please review the prior VA examination reports during the appeal period of each issue, and based on the information therein, provide the requested findings for each examination undertaken during the pendency of the appeal. - In addressing the above, the examiner must attempt to differentiate between symptoms associated with the Veteran’s service-connected reflex sympathy dystrophy of the right knee as opposed to her service-connected patellar pain syndrome of the right knee. - Provide a retrospective medical evaluation concerning the frequency and severity of the Veteran’s low back symptoms at the point in time when the disability was aggravated beyond the normal progression of such by the Veteran’s service-connected right knee disability. Chotta v. Peake, 22 Vet. App. 80 (2008). (Continued on the next page)   If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must readjudicate the issues remaining on appeal. If any benefit is not granted to the fullest extent, the Veteran and her representative must be furnished with a Supplemental Statement of the Case (SSOC) and be afforded the applicable opportunity to respond. R. Costello Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.