Citation Nr: 21000611 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-06 879A DATE: January 5, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to a compensable initial disability rating for rhinitis is remanded. Entitlement to a compensable initial disability rating for kidney stones is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 8, 2019 is remanded. REASONS FOR REMAND The Veteran had active service from October 1982 to September 1986, from March 2002 to July 2002, and from November 2005 to November 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in August 2015 and December 2017. In in December 2017, the Board remanded the above listed issues for further development. They now return for appellate review. In December 2017, the Board also remanded the issues of entitlement to service connection for a low back disability, bilateral foot disability and bilateral shoulder disability. Thereafter, an August 2019 rating decision granted service connection for degenerative changes and intervertebral disc syndrome of the lumbar spine, service connection for degenerative changes bilateral feet with history of feet sprains and fractures, and service connection status post rotator cuff and superior labral anterior to posterior tear repair for each shoulder. Accordingly, these claims are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Additionally, a November 2019 rating decision continued the noncompensable evaluations assigned for the Veteran’s kidney stones and rhinitis and also granted entitlement to a TDIU effective August 8, 2019. In this regard, in an August 2019 application for TDIU, the Veteran generally, asserted he was unemployable, in part, due to his kidney stones and rhinitis. Thus, under Rice v. Shinseki, 22 Vet. App. 447 (2009), there remains an issue of entitlement to a TDIU prior to August 8, 2019, in relation to the claims for an increased initial ratings for kidney stones and rhinitis, effective from November 27, 2009, the date for which service connection was granted these disabilities. In May 2017, the Veteran presented testimony at a Travel Board hearing before a Veterans Law Judge (VLJ), in part, as to the issues herein on appeal; however, the VLJ who conducted the May 2017 hearing is no longer employed by the Board. By letter dated on October 23, 2020, the Veteran was provided the opportunity to testify at another hearing before a VLJ and advised that if he did not respond within 30 days, it would be assumed that no additional hearing was desired. As the Veteran did not respond, the Board may proceed with appellate consideration. The record also reflects on October 2, 2020, a letter was sent to the Veteran in error which indicated that he had requested a Travel Board hearing that had not yet been held and suggested that he consider a virtual tele-hearing as an alternative. However, as discussed above, as to the issues addressed herein, a Board hearing was held in May 2017 and another hearing has not been requested as to these claims. However, the issue of entitlement to service connection for sleep apnea has been certified to the Board, and the record reflects, in the January 2020 substantive appeal for this claim, that the Veteran requested a videoconference hearing before a Board member. As such, the Board will not adjudicate this issue at this time, given the pending Board hearing request in this matter. 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a left ankle disability is remanded. The post service record reflects the Veteran reported left knee and left ankle pain, but does not reflect a diagnosis of chronic disability has been endorsed for either condition. Specifically, a January 2010 VA examiner did not endorse a diagnosis as to the Veteran’s left knee or left ankle. Further, January 2010 imaging of the Veteran’s left knee showed no fracture or dislocation and had normal alignment and joint space and January 2010 imaging of his left ankle showed no fracture or dislocation. However, an April 2006 pre-deployment health assessment and March 2007 post deployment health assessment documented the Veteran had a deployment to Iraq, which is consistent with the Veteran’s statements and testimony. Thus, as the record reflects that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, and service connection may be established if the Veteran exhibits objective indications of a chronic disability resulting from undiagnosed illness or medically unexplained chronic multi-symptom illness, to include joint pain, that became manifest to a degree of 10 percent or more not later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Thus, on remand, the Veteran must be provided with a VA examination to determine the nature and etiology of any left knee and/or left ankle disability identified. In this regard, if a disability of either the left knee or left ankle is identified (and even if a diagnosis is not identified but manifests in symptoms that cause functional impairment), it should be determined whether the identify disability is etiologically related to service. Further, if no diagnosis is endorsed, it should be determined whether the Veteran’s complaints related his left knee or left ankle constitute an objective indication of a qualifying chronic disability resulting from undiagnosed illness or medically unexplained chronic multi-symptom illness that cannot be attributed to any known clinical diagnosis. Additionally, in December 2017, the Board remanded these claims, in part, to obtain additional VA treatment records. Specifically, in December 2017, the Board noted, in pertinent part, that in May 2017 testimony, the Veteran reported VA treatment from the Memphis VA Medical Center (VAMC), most recently in 2010, and thus, found remand was warranted to obtain any additional records from the Memphis VAMC dated in 2010. In this regard, the Veteran’s Memphis VAMC treatment records of record are most recently dated in December 2009. Also of record are January 2010 examination reports, which were provided by the Memphis VAMC. However, no additional Memphis VAMC treatment records have been obtained pursuant to the prior Board remand. The record also reflects the Veteran receives continuing treatment at the VA Ann Arbor Healthcare System. Thus, updated VA treatment records, from the VA Ann Arbor Healthcare System, dated from October 2019 to the present, as well as any Memphis VAMC treatment records, dated in 2010, should be obtained and associated with the record. 3. Entitlement to a compensable initial disability rating for rhinitis is remanded. 4. Entitlement to a compensable initial disability rating for kidney stones is remanded. Following issuance of the August 2019 supplemental statement of the case, the AOJ obtained and associated with the claims file an October 2019 sinusitis/rhinitis and other conditions of the nose, throat, larynx and pharynx disability benefits questionnaire (DBQ) and an October 2019 kidney condition DBQ. These DBQs provided additional relevant information regarding the severity of the Veteran’s rhinitis and kidney stones. Crucially, these DBQs were associated with the file in November 2019, prior to recertification to the Board in July 2020. VA regulations require an SSOC be issued in such circumstances. 38 C.F.R. § 19.31. Accordingly, a remand is required. 5. Entitlement to TDIU prior to August 8, 2019 is remanded. As noted above, the issue of entitlement to a TDIU prior to August 8, 2019 is, in part, based on the Veteran’s service-connected kidney stones and rhinitis. Thus, as the issue of entitlement to a TDIU is intertwined with these increased initial rating claims, a remand is warranted for the claim for TDIU claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Obtain any of the Veteran’s VA treatment records, from the Memphis VAMC dated in 2010, and from the VA Ann Arbor Healthcare System, dated from October 2019 to the present. 2. Schedule the Veteran for a VA examination for his left knee and left ankle. The examiner must review the claims file. The examiner is asked to provide a response, with a rationale, to the following: (a.) The examiner should state whether the Veteran’s symptoms of joint pain of the left knee and/or left ankle, can be ascribed to any known clinical diagnoses. (b.) If diagnosed disorders are established (or if a diagnosis cannot be provided but the Veteran’s condition of the left knee and/or left ankle manifests in symptoms that cause functional impairment), the examiner should render an opinion as to whether it is at least as likely as not that any such disorder had its onset during the Veteran’s active service or is otherwise related to such service. (c.) If the Veteran’s symptoms of joint pain of the left knee and/or left ankle, cannot be ascribed to any known clinical diagnosis, then specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (d.) Please provide an opinion as to whether the Veteran’s left knee and ankle symptoms are due to a medically unexplained chronic multisymptom illness. In providing the requested opinions, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Thereafter, readjudicate the issues on appeal with review of all evidence received since the last prior adjudication of the Veteran’s claims, and also adjudicate entitlement to a TDIU prior to August 8, 2019. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case   and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.