Citation Nr: A20007330 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190701-27690 DATE: April 30, 2020 REMANDED Entitlement to a disability evaluation in excess of 10 percent for left knee chronic patellar tendonitis is remanded. Entitlement to a disability evaluation in excess of 10 percent for right knee chronic patellar tendonitis is remanded. Entitlement to a disability evaluation in excess of 10 percent for early degenerative disc disease of the thoracolumbar spine is remanded. Entitlement to a compensable disability evaluation for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2008 to October 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 Rating Decision by a Department of Veterans Appeals (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, following issuance of a May 2019 Statement of the Case, in July 2019 the Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement), in which he requested a Direct Review of the evidence considered by the RO, and indicated that he did not want a Board hearing. As such, the Board may only consider the evidence of record at the time of the May 2019 Statement of the Case. In September 2019 correspondence, the Board accepted the Veteran’s appeal and placed it on the Direct Review docket. The Board notes that evidence (to include the report of a September 2019 VA Posttraumatic Stress Disorder (PTSD) examination and additional evidence and argument relevant to his PTSD and sinusitis claims, which are not the subject of this decision, as discussed below) was added to the claims file during a period of time when new evidence was not allowed. Therefore, the Board may not consider this evidence. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, then VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board also acknowledges that the May 2019 Statement of the Case addressed the issue of entitlement to a disability evaluation in excess of 30 percent for PTSD. A second Statement of the Case issued later that month addressed the issue of entitlement to service connection for sinusitis. However, the Veteran did not include either of these issues on the July 2019 Decision Review Request: Board Appeal (Notice of Disagreement) in which he sought Direct Review of the issues currently on appeal. Rather, the Veteran submitted additional evidence with respect to the PTSD and sinusitis claims in July 2019, at which time he submitted a Decision Review Request: Supplemental Claim. The Veteran was then provided with an additional VA PTSD examination in September 2019, and the claims were readjudicated in a September 2019 Rating Decision. Thereafter, in October 2019, the Veteran submitted another Decision Review Request: Board Appeal (Notice of Disagreement) in which he sought Direct Review of the PTSD and sinusitis claims. These claims were assigned a different Docket Number and placed on the Direct Review docket by the Board in October 2019. As such, the claims of entitlement to a disability evaluation in excess of 30 percent for PTSD and entitlement to service connection for sinusitis will be addressed in a separate Board decision under a different Docket Number. The Veteran seeks entitlement to higher disability evaluations for his service-connected left knee chronic patellar tendonitis, right knee chronic patellar tendonitis, early degenerative disc disease of the thoracolumbar spine, and migraine headaches. Unfortunately, the Board finds that additional development must be undertaken to correct duty to assist errors that occurred prior to the June 2017 Rating Decision on appeal. The Board notes that under Direct Review, a remand is allowed when there has been a pre-decisional duty to assist error, including those related to examinations. 38 C.F.R. § 20.802(a). Here, the Veteran filed his increased disability evaluation claims in March 2017, at which time he indicated that he received medical treatment through the VA Eastern Kansas Health Care System at the Colmery-O'Neil VA Medical Center in Topeka, Kansas, as well as through the VA Heartland Network at the Kansas City VA Medical Center in Kansas, City, Missouri. These medical treatment records, which showed ongoing treatment for headaches, back pain, and knee pain, were obtained and associated with the claims file in March 2017 and May 2017. The Veteran was then provided with several VA examinations in May 2017, to include a VA Knee and Lower Leg Conditions examination, a Back (Thoracolumbar Spine) Conditions examination, and a VA Headaches (Including Migraine Headaches) examination. These examination reports, authored by the same VA Advanced Registered Nurse Practitioner, indicated that the Veteran’s medical treatment records were not reviewed by the examiner. In correspondence dated in July 2019, the Veteran’s attorney argued that the May 2017 VA examinations were inadequate because the examiner failed to review the Veteran’s claims file. Additionally, the Veteran’s attorney argued that the May 2017 examiner did not provide adequate rationale for her findings and conclusions. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obliged, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion will be considered adequate when it is based upon consideration of the Veteran's prior medical history and examinations and provides a sufficiently detailed description of the disability so that the Board's "evaluation of the claimed disability will be a fully informed one." Id.; Green v. Derwinski, 1 Vet. App., 121, 124 (1991). Furthermore, an adequate examination requires that the examiner providing the report or opinion be fully cognizant of the Veteran's past medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As the Veteran’s VA treatment records associated with the claims file at the time of the May 2017 VA examination detailed the symptomatology associated with his service-connected left knee chronic patellar tendonitis, right knee chronic patellar tendonitis, early degenerative disc disease of the thoracolumbar spine, and migraine headaches as far back as 2012, the Board finds that the VA examiner’s failure to review these records rendered the examination reports inadequate, especially in light of the fact that the examinations were not conducted during a period of flare-up or after repetitive use over time. Therefore, the Board finds that there was a pre-decisional duty to assist error prior to the Rating Decision on appeal. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA examination to determine the current degree of severity of his service-connected chronic patellar tendonitis of the right knee and chronic patellar tendonitis of the left knee. The claims file must be made available to the examiner in conjunction with the examination, and such review must be noted in the examination report. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, then the examiners should provide a fully reasoned explanation. All indicated testing must be conducted, to include range of motion findings, with pain, in degrees, on active and passive motion, and on weight-bearing and nonweight-bearing. The Veteran’s knee disabilities should be evaluated in accordance with VA rating criteria. After a review of the evidence, to include VA treatment records, and with consideration of the Veteran's lay statements regarding his symptoms, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion), including on repeated use and during flare-ups. If the Veteran reports flare-ups, but is not having a flare-up during the examination, the examiner should consider all information of record, including the Veteran’s reports, in making such assessment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Provide the Veteran with an appropriate VA examination to ascertain the current severity and manifestations of his service-connected early degenerative disc disease of the thoracolumbar spine. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, and such review must be noted in the examination report. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, then the examiners should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's service-connected thoracolumbar spine disability under the applicable rating criteria. In particular, the examiner should provide range of motion findings, with pain, in degrees, on active and passive motion, and on weight-bearing and nonweight-bearing. The examiner must state whether there is any form of ankylosis, on active and passive motion, including on weight bearing and nonweight-bearing. The examiner should also indicate whether there is any muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiner should further state the total duration of incapacitating episodes over the past 12 months and identify any/all neurological manifestations of the disability. Evidence used in making these determinations should be highlighted. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion), including on repeated use and during flare-ups. If the Veteran reports flare-ups, but is not having a flare-up during the examination, the examiner should consider all information of record, including the Veteran’s reports, in making such assessment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of all manifestations associated with his service-connected migraine headaches. The Veteran’s claims file, to include a copy of this Remand, should be made available to the examiner in conjunction with the examination, and such review must be noted in the examination report. All medically-indicated tests should be accomplished. After a review of the evidence, to include VA treatment records, and with consideration of the Veteran’s lay statements regarding his symptoms, the examiner should address the extent of the Veteran’s migraine headaches in accordance with VA rating criteria, to include frequency and associated functional impairment. A complete rationale should be provided for the opinions or conclusions expressed. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.