Citation Nr: 20026027 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 14-23 342 DATE: April 15, 2020 REMANDED Entitlement to service connection for basal cell carcinoma is remanded. Entitlement to service connection for squamous cell carcinoma is remanded. Entitlement to an increased evaluation in excess of 10 percent for right knee disability prior to September 6, 2016 is remanded. Entitlement to an increased evaluation in excess of 30 percent for right knee disability status post replacement from September 6, 2017 to January 31, 2020 is remanded. Entitlement to an increased evaluation in excess of 60 percent for right knee disability status post replacement from January 31, 2020 is remanded. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. §§ 4.29 and 4.30 for right knee status post replacement is remanded. Entitlement to special monthly compensation (SMC) for right knee status post replacement is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1954 to September 1975. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By way of background, the Veteran underwent a total right knee joint replacement in September 2016, and thus the issues associated with his right knee are now right knee status post replacement, and the procedural posture has been adjusted accordingly. By way of background, in a February 2020 rating decision, the Veteran’s right knee disability was increased to 60 percent disabling, effective January 31, 2020. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. On October 29, 2019, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Partial Remand (JMPR) that remanded the issues relating to service connection for each the basal cell and squamous cell carcinoma service connection claims, and the increased rating claims for the right knee, back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court’s remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated January 3, 2020 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. In this period of time, the Veteran obtained new representation who submitted correspondence to the Board in February and March 2020. See Clark v. O’Rourke, 30 Vet. App. 92 (2018). The substance of the Court’s JMPR will be discussed further in the remand section below. The Board remanded the issues on appeal for additional development in February 2017 and August 2018. Based on the Court’s JMPR, the issues must again be remanded again. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at a VA Central Office board hearing before the undersigned Veterans Law Judge in November 2016. A transcript of the hearing is of record. The Board notes the presence of a Privacy Act request by the Veteran’s new representative in February 2020. While the Board notes 38 C.F.R. § 20.1200 (2019) regarding such requests, the Board also notes this remand does not adjudicate any of the issues now under the Board’s jurisdiction but rather remands all for further development by the RO pursuant to the CAVC’s decision already noted. As such, the Board finds there is no prejudice to the Veteran for the remand of the issues under consideration, and will proceed with discussion and further remand of the issues previously listed. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Recent VA medical records indicate the Veteran’s worsening right knee make walking, bending, and lifting extremely difficult to the point where the service-connected disability interferes with activities of daily living. As such, the Board therefore finds a claim for TDIU is inferred from the record. The Veteran was awarded SMC K-1 pursuant to 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ, from August 8, 2011. However, because the Veteran underwent a total arthroplasty of the right knee in September 2016, he may be entitled to SMC related to that disability, and thus a claim for further SMC is discussed in the remand section of this decision. 1. Entitlement to service connection for basal cell carcinoma is remanded. 2. Entitlement to service connection for squamous cell carcinoma is remanded. 3. Entitlement to an increased evaluation in excess of 10 percent for right knee disability prior to September 6, 2016 is remanded. 4. Entitlement to an increased evaluation in excess of 30 percent for right knee disability status post replacement from September 6, 2017 to January 31, 2020 is remanded. 5. Entitlement to an increased evaluation in excess of 60 percent for right knee disability status post replacement from January 31, 2020 is remanded. 6. Entitlement to a temporary total rating for right knee disability pursuant to 38 C.F.R. § 4.29, 4.30 is remanded. 7. Entitlement to special monthly compensation (SMC) is remanded. The Board issued a decision in August 2018 denying the Veteran’s claims for service connection for basal cell carcinoma and squamous cell carcinoma, and denying an increased rating claim for the right knee in excess of 10 percent for the period prior to September 5, 2016. The Board granted an increased evaluation of 30 percent, but no higher, for the right knee disability from September 6, 2017 forward. That Board decision also remanded for further development consideration of a temporary total evaluation pursuant to 38 C.F.R. §§ 4.29 and 4.30 for right knee status post replacement and also SMC consideration for the same right knee disability. The Veteran appealed to the CAVC, as noted previously, and on October 29, 2019, the Court issued a JMPR that vacated and remanded the Board’s decisions regarding the two skin cell carcinoma service connection claims, and the two increased ratings claims for the right knee for two reasons: that the Board failed to ensure the Veteran’s duty to assist was satisfied, in the provision of medically and legally adequate VA examinations, and that the Board’s statements of its reasons and bases were inadequate. No. 18-7062, 2019 U.S. App. Vet. Claims (October 29, 2019) (unpublished). With regard to the VA examinations for the right knee disability, the Court considered the VA examinations used as medical evidence in the Board’s adjudication to be inadequate, in that the October 2012 examination did not determine whether there was pain on active and/or passive motion or in weight-bearing and non-weight-bearing mode as required by Correia v. McDonald, 28 Vet. App. 158 (2016). The Court also considered the July 2017 examination inadequate because it did not explain that the examiner’s inability to provide an opinion to evaluate the Veteran’s claimed flare-ups without resort to speculation pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). With regard to the basal cell and squamous cell carcinoma service connection claims, the Court determined that the July 2017 VA medical opinion, upon which the Board relied, was not consistent with Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). The Court described in dicta that Polovick held that to deny a service connection claim on the basis that there is no nexus solely based on a statistical analysis that does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection, a tenet that the Court described as violating Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007): that “[t]he existence of presumptive service connection for a condition based on exposure to Agent Orange presupposes that it is possible for medical evidence to prove such a link before the National Academy of Sciences recognizes a positive association.” To this end, then, the Court prescribed a remand for a retrospective opinion to consider the etiology of the Veteran’s basal and squamous cell carcinomas, to include whether these conditions are as likely as not due to herbicide exposure in service, consistent with Polovick. The Court, in its opinion, specifically excluded the two Board issues that were remanded in the August 2019 Board decision and remand, entitlement to a temporary total evaluation and/or SMC for the right knee disability, because those issues, having been remanded, were not under the Court’s jurisdiction at the time of its October 2019 decision. The Board notes that, but also that its remand for those two issues relied on the same VA examinations and opinions upon which the Court found insufficient in its decision, vacating and remanding the other issues as already discussed. As such, the Board finds those two issues must be remanded with the others as well. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran’s most recent examinations for the above claims are inadequate for the reasons stated above. Therefore, a remand is required to obtain the requisite VA examinations and opinions for service connection and increased ratings for the claimed disabilities. With regard to the right knee claims, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). When the evidence of record does not reflect the current state of the claimant’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) In addition, since the Veteran’s right knee disabilities were last adjudicated, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). Pursuant to the Court’s decision, then, further VA examination is warranted. The Board notes that the Veteran reports flare ups of right knee disability along with decreased range of motion. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Additionally, the United States Court of Appeals for Veterans’ Claims (Court) recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather “it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code.” Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board notes from the Veteran’s testimony during his hearing regarding his increasing severity of his right knee symptoms. 8. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Concerning entitlement to the basal cell and squamous cell carcinomas, and the increased rating claims for the right knee, the Board finds that any determinations with respect to the either would materially affect a determination concerning a TDIU claim. As such, it is inextricably intertwined with the increased rating and service connection claims being remanded, and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with the claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. 2. For the right knee orthopedic disabilities, to include the increased rating claims, the temporary total evaluation, and the possibility of SMC related to the right knee, schedule the Veteran for a VA examination with a VA medical professional with expertise in orthopedics to determine the current nature and severity of his right knee disability to include all orthopedic and neurological manifestations. The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner, to include appropriate imaging, should be conducted. 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. For the pertinent disabilities, the examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for each of the joints in question. See Correia v. McDonald, 28 Vet. App. 158 (2016). The VA examiner should conduct, consistent with 38 C.F.R. § 4.59, range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-up, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate information—i.e. frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. 3. Obtain a retrospective opinion from a VA medical professional with appropriate expertise in skin cancers to address the nature and etiology of the Veteran’s basal cell and squamous cell carcinoma service connection claims. The Veteran need not be scheduled for another VA medical examination unless needed to provide the requested medical opinion. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. After reviewing the claims file, the examiner should answer the following question for each claimed service connection disability of the basal cell and squamous cell carcinomas: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s basal cell and/or squamous cell carcinoma disabilities had their onset in service or are otherwise related to any in-service disease, event, or injury, to include the possibility of herbicide agent exposure? The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. When considering the evaluations, the examiner is to carefully consider all lay statements of record, VA treatment records, and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his reports of his activities and symptoms in and since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A detailed rationale supporting the examiner’s opinion should be provided for each disability. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must 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). Jones v Shinseki, 23 Vet. App. 382 (2010). 4. Thereafter, readjudicate the issues on appeal as noted above, to include the inferred TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.