Citation Nr: 21063687 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-35 263 DATE: October 15, 2021 REMANDED Entitlement to service connection for seizures is remanded. Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis of the left hip is remanded. Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis of the right hip is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to April 20, 2016 is remanded. REASONS FOR REMAND The Veteran had honorable, active duty service from May 1973 to May 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in March 2014 and September 2015. On the Veteran's request, a Board hearing was scheduled for April 2021. The Veteran was notified in a letter dated in March 2021 of the date, time, and location of the hearing. He did not attend the scheduled hearing, nor did he request for the hearing to be rescheduled. His hearing request is therefore considered withdrawn. 1. Entitlement to service connection for seizures is remanded. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA is obligated to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. Id. The Veteran's VA treatment records indicate that he is diagnosed with seizure disorder. He believes that his seizures are caused from multiple instances during service wherein he was knocked unconscious, including while playing basketball. The Veteran's service treatment records are unavailable, and a formal finding of unavailability was made in May 2013. However, he has submitted records showing that he played basketball while in service, and he reported to a VA examiner in September 2015 that he was knocked unconscious during a game in 1975 and was revived with smelling salts. The claims file contains evidence that the Veteran has a current seizure disability, and he has presented evidence that his claimed disability may be related to his active duty service. Thus, the Board finds that the threshold for a VA examination has been met, and a remand is therefore necessary. See McLendon, 20 Vet. App. at 83. 2. Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis of the left hip is remanded. 3. Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis of the right hip is remanded. When VA undertakes the effort to provide an examination, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Inadequate medical examinations include examinations that provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr, 21 Vet. App. at 311. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez, 22 Vet. App. at 304. VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. To be adequate, a VA joint examination must include an opinion on the joint's functional loss after repeated use over time. When the examination is not being conducted immediately after repeated use over time, the examiner is to estimate functional loss based on the veteran's descriptions of his additional loss of function as gleaned from his medical records, or discerned other sources available to the examiner. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). The Veteran underwent a VA examination for his thigh disability in September 2015. The examiner stated that she could not provide an opinion as to whether his hip arthritis causes additional functional loss over repeated use over a period of time because he did not use his hips repeatedly at the time of examination. The September 2015 VA examination is inadequate under Sharp, 29 Vet. App. at 35-36. The examiner stated that she did not examine the Veteran after repeated use over time, but she did not provide estimates on additional functional loss or give an adequate reason why such estimates could not be provided. Moreover, over six years have passed since the Veteran's only VA examination in September 2015. Therefore, a new VA examination is warranted to correct the inadequacy of the September 2015 examination and to assess the current level of the Veteran's disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to April 20, 2016 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). In a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, dated in May 2016, the Veteran reported that he has not worked since 1995 and that his service-connected disabilities rendered him unemployable. The Board notes that a TDIU was granted from April 20, 2016 in an August 2016 rating decision. However, the evidence shows that the Veteran may have been unemployable due to his service-connected disabilities prior to that date. Therefore, the issue of entitlement to a TDIU for the period prior to April 20, 2016 is reasonably raised by the evidence of record. See Rice, 22 Vet. App. at 453. The Board also notes that the Veteran's disability evaluations do not currently meet the schedular threshold for a TDIU for the entire period on appeal, as he does not have a service-connected disability rated at 40 percent or more prior to December 10, 2015. See 38 C.F.R. § 4.16(a). The pending claims of service connection for seizures and increased initial ratings for bilateral hip osteoarthritis are therefore inextricably intertwined with the TDIU claim, as the outcome of those claims will affect his entitlement to a schedular TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Consequently, the claim for entitlement to a TDIU must be remanded. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, from August 2017 to the present. 2. After completing #1, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed seizure disorder. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. After conducting such examination, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's seizure disorder was incurred in, or is otherwise related to, his honorable period of active duty service. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. The examiner is also advised that the Veteran's service treatment records are unavailable. As such, if a negative nexus opinion is provided, it must not rest on a lack of documented in-service treatment. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 3. After completing #1, schedule the Veteran for a VA examination to assess the current level of his bilateral hip disability. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. Complete range of motion (ROM) testing should be conducted, with active and passive motion, and with weight-bearing and non-weight-bearing. The examiner should also express an opinion as to how far back (i.e. one year, two years, etc.) each finding would apply. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. (Continued on the next page) 4. After completing #1 through #3, readjudicate the issues on appeal, including entitlement to a TDIU. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide them an opportunity to respond. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.