Citation Nr: 21071608 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-43 179 DATE: November 30, 2021 REMANDED Entitlement to an increased rating in excess of 30 percent for a left knee injury is remanded. Entitlement to an increased rating in excess of 10 percent for left knee degenerative joint disease (DJD) based on limitation of flexion is remanded. Entitlement to a compensable rating for left knee DJD based on limitation of extension is remanded. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for diabetes mellitus type II, to include as secondary to a service-connected disability, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1983 to October 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in December 2013 and September 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in December 2013 the RO denied an increased rating in excess of 30 percent for a left knee injury, and denied service connection for diabetes mellitus and hypertension. The Veteran filed a notice of disagreement with the denials in October 2014, and later perfected an appeal of those issues to the Board in November 2015. During the course of the above appeal, the RO assigned a separate 10 percent rating for left knee limitation of flexion in September 2015, and a noncompensable rating for limitation of extension in June 2021. As these ratings also concern the left knee, they are also on appeal before the Board. The Board most recently remanded the issues of service connection for diabetes mellitus and hypertension for additional development in April 2021, and the requested medical opinions were obtained in May 2021. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to increased ratings for left knee instability, limitation of flexion, and limitation of extension. In this case the Veteran was provided with VA examinations in October 2013, February 2018, and May 2021. In pertinent part, during the October 2013 and February 2018 VA examinations the Veteran reported experiencing flare-ups of his left knee disability. However, neither of the examiners either provided an estimate concerning range of motion loss during such flare-ups, or explained why such an opinion could not be given. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). The Veteran then denied experiencing flare-ups of the knee disability during the May 2021 VA examination, and therefore that examiner also did not opine as to range of motion loss during flare-ups. Thus, at no point has any examiner opined as to the degree of range of motion loss during the flare-ups reported by the Veteran in October 2013 and February 2018. As such, the Board finds that it is necessary to remand the claim to attempt to obtain a retrospective opinion concerning range of motion loss during the flare-ups reported by the Veteran in October 2013 and February 2018. Chotta v. Peake, 22 Vet. App. 80, 8586 (2008). As to the left knee instability, as this remand may result in evidence that is relevant to the claim for an increased rating for left knee instability, to include whether referral for extraschedular consideration is necessary, this claim is intertwined with the other increased rating claims being remanded and must 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). 2. Entitlement to service connection for hypertension. In this case, the issue of entitlement to service connection for hypertension was remanded in February 2020. In the February 2020 remand, the Board requested that the examiner opine as to whether the Veteran's hypertension was causally related to service, including an elevated blood pressure reading in March 1986. The Board then further requested that the examiner state whether hypertension was caused or aggravated by a service connected disability, and requested that the examiner address the November 2019 private opinion of record and the submitted medical articles. In accordance with the Board's remand, opinions concerning direct and secondary service connection were obtained in January 2021. With respect to secondary service connection, the examiner stated that it was less likely than not proximately due to or caused by the Veteran's service connected disabilities. In support of this opinion, the examiner stated that while the Veteran had elevated blood pressure in service, these readings lowered after repeated testing. The examiner then stated that hypertension was not subsequently diagnosed until 13 years after separation. The examiner then separately stated that the Veteran's hypertension was not aggravated by another service-connected disability, and provided the same supporting rationale. Unfortunately, this opinion is inadequate for two reasons. First, the examiner failed to address the November 2019 private medical opinion and the submitted articles concerning the relationship between pain and elevated blood pressure, as requested by the Board in the February 2020 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Second, the examiner's rationale does not appear to logically support the overall conclusion. Specifically, it is unclear how or why the fact that the Veteran did not have hypertension in service or until 13 years after service supports the conclusion that the disability was not caused or aggravated by a service-connected disability. As such, the Board finds that the issue must be remanded for new opinions. 3. Entitlement to service connection for diabetes mellitus. As with the claim for service connection for hypertension discussed above, in February 2020 the Board remanded the issue of entitlement to service connection for diabetes mellitus for opinions addressing whether the diabetes was either directly related to the Veteran's period of service or whether the diabetes was caused or aggravated by a service-connected disability. The Board further requested that the opining physician specifically address a November 2019 private opinion asserting that the claimed diabetes was caused or aggravated by the Veteran's psychiatric disability. Opinions concerning direct and secondary service connection were obtained in January 2021. Concerning secondary service connection, the examiner stated that the diabetes was less likely than not caused by the Veteran's service-connected disabilities, stating that the Veteran's diabetes did not have its onset until 2002, approximately sixteen years after the Veteran's separation. The examiner then stated that diabetes was also not aggravated by any service-connected disabilities, explaining that diabetes is an impairment of the way that the body regulates and uses glucose, and that the resulting excess of glucose in the blood stream may result in other disabilities. Unfortunately, this opinion is inadequate for two reasons. First, the examiner failed to address the November 2019 private medical opinion and the submitted articles concerning the relationship between pain and elevated blood pressure, as requested by the Board in the February 2020 remand. Stegall, 11 Vet. App. 268, 271. Second, private treatment records reflect that the Veteran was noted to have diabetes mellitus as early as December 1999. Reonal v. Brown, 5 Vet. App. 458, 46061 (1993). Third, as with the hypertension opinion discussed above, it is unclear how or why the fact that the Veteran was not diagnosed with diabetes until 16 years after his separation from service supports the conclusion that the disability was not caused by another service connected disability. Nor did the examiner clearly state why the fact that diabetes is a disability that impairs the way the body regulates and uses glucose in turn means that it was not aggravated by any of the service connected disabilities. As such, the Board finds that the issue must be remanded for new opinions. 4. Entitlement to a TDIU. Concerning entitlement to a TDIU, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning entitlement to a TDIU. As such, it is inextricably intertwined with the increased rating claims being remanded and must therefore be remanded as well. Harris, 1 Vet. App. 180. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the May 2021 VA examination, or another examiner if the May 2021 examiner is unavailable. The examiner should answer the following: Based on the Veteran's lay statements and the other findings in the October 2013 and February 2018 examination reports, the examiner should provide an opinion estimating any additional limitation of motion caused by functional loss during a flare-up at the time of the examinations. This opinion should address the Veteran's disability, and its flare-ups, as it was at the time of the October 2013 and February 2018 examinations, not as it is currently. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's hypertension. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the hypertension is causally related to the Veteran's active service? Attention is invited to elevated blood pressure readings in the Veteran's service treatment records from March 1986 and August 1986 (labelled "STR - Medical" pgs. 12, 44 uploaded 4/7/14). b) If not, is it at least as likely as not (a fifty percent probability or greater) that the hypertension was caused by a service-connected disability? c) If not, is it at least as likely as not (a fifty percent probability or greater) that the hypertension was aggravated (worsened) by a service-connected disability? In answering (b) and (c) above, attention is invited to the following: (1) a November 2019 private medical opinion indicating that the Veteran's hypertension was directly caused or aggravated by his service connected disabilities (labelled "Medical Treatment Record - Non-Government Facility" uploaded 11/14/19); and (2) medical articles discussing an association between pain and elevated blood pressure (labelled "Third Party Correspondence" uploaded 11/14/19). 3. A detailed rationale for the opinion must be provided. 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. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's diabetes mellitus. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the diabetes mellitus is causally related to the Veteran's active service? b) Is it at least as likely as not (a fifty percent probability or greater) that the diabetes mellitus was caused by a service-connected disability? c) If not, is it at least as likely as not (a fifty percent probability or greater) that the diabetes mellitus was aggravated (worsened) by a service-connected disability? In answering (b) and (c) above, attention is invited to a November 2019 private medical opinion indicating that the Veteran's hypertension was directly caused or aggravated by his service connected disabilities (labelled "Medical Treatment Record - Non-Government Facility" uploaded 11/14/19). A detailed rationale for the opinion must be provided. 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. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.