Citation Nr: 20021769 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-48 878 DATE: March 26, 2020 REMANDED Entitlement to an effective date prior to January 18, 2007 for the grant of service connection for right lower extremity peripheral neuropathy is remanded. Entitlement to an effective date prior to January 18, 2007 for the grant of service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 10 percent for retained foreign body, right knee is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral arthritis, right knee is remanded. Entitlement to an initial compensable rating for right knee limitation of extension is remanded. Entitlement to a rating in excess of 10 percent for retained foreign body, left knee is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral arthritis, left knee is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II is remanded. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. REFERRED The issue of entitlement to service connection for sleep apnea was raised in a September 2014 Supplemental Claim, but that Board’s review indicates that it has not yet been adjudicated. The issue is therefore referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS FOR REMAND The Veteran served on active duty from October 1967 to October 1975. This matter came before the Board of Veterans Appeals (Board) on appeal from September 2014 and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The September 2015 rating decision also adjudicated the issue of an increased rating for a right arm foreign body. As Board’s review indicates that the Veteran did not include that issue in his January 2016 Notice of Disagreement or otherwise submit a timely appeal regarding that issue, it is not before the Board. 1. Entitlement to an effective date prior to January 18, 2007 for the grant of service connection for right lower extremity peripheral neuropathy is remanded. 2. Entitlement to an effective date prior to January 18, 2007 for the grant of service connection for left lower extremity peripheral neuropathy is remanded. The Veteran contends that he is entitled to an earlier effective date for his right and left lower extremity peripheral neuropathy, which both have an effective date of January 18, 2007. A September 2014 rating decision granted service connection effective January 18, 2007, which the September 2017 Statement of the Case (SOC) stated was based on January 2007 VA treatment records showing a diagnosis of bilateral lower extremity neuropathy. The September 2014 rating decision’s evidence list includes VA treatment records dating from October 20, 1999 to July 28, 2014. The Board’s review indicates that some relevant VA treatment records have not yet been added to the claim file, including the January 2007 records cited as the basis for the currently assigned effective dates. Upon review, the Board notes that the claim file includes VA treatment records dating from July 17, 2008 to July 28, 2014 and scattered records from earlier periods. However, it does not appear to include any records from 2007. As the Board cannot be certain that the complete VA treatment records from October 20, 1999 to July 17, 2008 have been added to the file, remand to obtain those records is required. The Board also notes that the most recent VA treatment records in the file date from August 2017. As the record indicates that the Veteran receives ongoing VA treatment, any outstanding VA treatment records should be obtained upon remand. 3. Entitlement to service connection for erectile dysfunction is remanded. A September 2014 VA examination found that the Veteran’s erectile dysfunction was not due to his service-connected diabetes, stating as a rationale that the Veteran’s etiology was unknown, and it would be speculative to opine whether the Veteran’s incomplete erectile dysfunction was due to diabetes. The provider noted that erectile dysfunction can be associated with diabetes, but the Veteran was also receiving testosterone and that could also be a factor along with aging. First, the Board notes that the question in cases of secondary service connection is not whether the service-connected disability is the sole cause, but whether it likely played a role in causing the claimed disability, and the opinion is therefore inadequate as it applied the incorrect standard. The opinion is also inadequate as it did not address the question of whether diabetes likely aggravated the Veteran’s erectile dysfunction. See El-Amin v. Shinseki, 26 Vet. App. 136, 140–41(2013); Allen v. Brown, 7 Vet. App. 439 (1995). Remand for a new examination is therefore required. 4. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy is remanded. 5. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy is remanded. A VA peripheral neuropathy examination was provided in June 2015. The examiner found that the Veteran had symptoms of mild lower extremity intermittent pain and found no constant pain or numbness. Since the examination, April 2017 VA treatment records noted that his legs often gave way and the Veteran submitted an October 2019 vocational opinion which reported that he had daily bilateral lower extremity pain and intermittent numbness. As the evidence of record suggests his service-connected disability has increased in severity since the most recent VA examination in 2015, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 6. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is remanded. A VA examination was provided in August 2015. The examiner found that the Veteran did not meet the full criteria for PTSD under DSM-V. However, since that examination, records from a February 2016 VA psychiatric assessment show that the Veteran was diagnosed PTSD and note that he was avoidant, hypervigilant and isolative. As the evidence of record suggests the service-connected disability has increased in severity since the most recent VA examination in 2015, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 7. Entitlement to a rating in excess of 10 percent for retained foreign body, left knee is remanded. 8. Entitlement to a rating in excess of 10 percent for patellofemoral arthritis, left knee is remanded. 9. Entitlement to a rating in excess of 10 percent for retained foreign body, right knee is remanded. 10. Entitlement to a rating in excess of 10 percent for patellofemoral arthritis, right knee is remanded. 11. Entitlement to an initial compensable rating for right knee limitation of extension is remanded. An August 2015 VA examination evaluated the severity of the Veteran’s bilateral knee disabilities. However, while noting that the Veteran reported flare ups, the examiner stated that he could not offer an opinion as to functional loss during flare ups as the Veteran was not having a flare up during the examination. As the examiner declined to offer an opinion as to additional functional loss during flare ups due to a lack of direct observation of function under those circumstances, the examination is inadequate, and a new examination is required upon remand. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board further notes that the examiner noted pain on flexion but did not note the point at which pain began. This does not allow the Board to properly assess the functional impairment caused by the disability. A new examination is therefore required to provide the required joint testing for pain. 12. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II is remanded. The Board notes that VA treatment records have been requested as part of required development. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. As the requested records are likely to produce information relevant to the issue of an increased rating for diabetes mellitus, this issue must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). 13. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the remanded service connection and increased rating issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the periods from October 20, 1999 to July 17, 2008 and from August 2017 to the Present. 2. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current erectile dysfunction disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current erectile dysfunction disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service or whether it is caused or aggravated by his service-connected diabetes mellitus. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 3. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of his bilateral lower extremity peripheral neuropathy. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should also provide an opinion regarding the functional impact of the Veteran’s PTSD upon his ability to work. 4. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of his PTSD. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should also provide an opinion regarding the functional impact of the Veteran’s PTSD upon his ability to work. 5. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his bilateral knee disabilities. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all bilateral knee pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, 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.