Citation Nr: 21075210 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-48 509 DATE: December 17, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to an initial evaluation in excess of 30 percent for depressive disorder is remanded. Entitlement to an evaluation in excess of 10 percent for left lower extremity complex regional pain syndrome (CRPS) is remanded. Entitlement to a compensable evaluation for left knee scar is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had honorable active military service from July 1998 to April 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2015 (increased ratings for left lower extremity CRPS and left knee scar), October 2015 (increased rating for depressive disorder) and August 2016 (service connection for disorders of the low back and right knee and TDIU) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). At the Veteran's request, a December 2019 videoconference hearing was scheduled; this request was withdrawn by a November 2019 letter from his attorney. A March 2015 rating decision assigned a temporary total (100 percent) convalescence rating for left lower extremity CRPS (under 38 C.F.R. § 4.30) from April 30, 2014 (when the Veteran underwent percutaneous placement of two 8-contact spinal cord stimulator trial leads with Medtronic; however, the procedure was aborted because of the Veteran's discomfort during the surgery and inability to successfully place the lead in a satisfactory position where a proper trial could be performed) and assigned the 10 percent rating from June 1, 2014. Accordingly, the matter of the rating for left lower extremity CRPS from April 30, 2014 to May 30, 2014 is not before the Board as the benefit sought has been granted in full for this period. During the pendency of this appeal, the RO also issued a rating decision in September 2018 that denied service connection for right lower extremity CRPS. The Veteran perfected his appeal of this decision in September 2018. On his VA Form 9, the Veteran requested a videoconference hearing before the Board on this issue. To date, he is still waiting for his requested hearing. Therefore, given the pending hearing request, the Board cannot address the issue of entitlement to service connection for right lower extremity CRPS. That will need to be the subject of a future decision when all due process has been afforded the Veteran. 1. Service Connection for a Low Back Disorder 2. Service Connection for a Right Knee Disorder The Veteran seeks service connection for low back and right knee disabilities which he claims are associated with his service connected left leg symptomatology, including "years of altered gait." See January 2020 letter from his attorney. The clinical evidence of record shows the Veteran ambulates with an altered gait and a December 2009 VA feet examination report notes the Veteran's "exam and medical records reveal injury to the left leg likely to alter his gait and cause imbalance in his gait...". Although June 2016 VA back and knee examination reports include the opinions that the Veteran's back and knee conditions are less likely as not proximately due to, the result of or aggravated by his service connected left knee condition; these opinions are insufficient for rating purposes because (1) the opinions do not reflect consideration of the Veteran's altered gait, (2) in noting that the Veteran's "left knee condition is limited to chondromalacia," it is unclear whether the examiner considered all of the Veteran's service-connected left lower extremity disabilities (left lower extremity CRPS, residuals of left knee injury with chondromalacia, left knee instability, left knee limitation of extension, left knee scar and left foot calluses) and (3) do not include an opinion as to whether any back and/or right knee disability is directly related to service. Accordingly, remand to obtain a supplemental opinion is necessary. 3. Increased Rating for Depressive Disorder The Veteran's most recent VA mental disorders examination was in August 2015. Subsequent VA treatment records in June and July 2018 note the Veteran has reported his "depressive symptoms have worsened since his wife left unexpectedly" and note symptoms of panic and "suicidal thoughts with plan but no intention." This evidence suggests the Veteran's psychiatric disorder may have increased in severity since the last VA examination. Accordingly, another VA examination is required. 4. Increased Rating for Left Lower Extremity CRPS 5. Increased Rating for Left Knee Scar The Veteran's most recent VA examination in connection with his left lower extremity is a July 2018 peripheral nerves conditions examination report. Although this examination was conducted after the Veteran underwent spinal cord stimulator placement in May 2016 and spinal cord stimulator replacement in April 2018, subsequent treatment records show the Veteran has experienced breakthrough pain and has been in receipt of LMBB (lumbar Medial Branch Block) injections. This evidence suggests the Veteran's left lower extremity disability may have increased in severity since the last VA examination. In addition, it is noted that the July 2018 examination report did not address the ameliorative effects of medication and treatment; specifically, the spinal cord stimulator and LMBB injections. Jones v. Shinseki, 26 Vet. App. 565 (2012). The opinion on remand must address the severity of the left lower extremity disability without consideration of the ameliorative effects of medication and treatment. Regarding the left knee scar, in light of the Veteran's complaints of left lower extremity pain, on remand, the examiner will have an opportunity to examine and comment on the Veteran's left knee scar. 6. Entitlement to a TDIU is remanded. With regard to the Veteran's claim for TDIU, this claim is inextricably intertwined with the claims remanded herein. As any development or additional allowance of these claims could affect the outcome of the TDIU claim, adjudication of the TDIU claim is deferred pending resolution of the remanded claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Additionally, the most recent May 2016 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability (Application), is dated May 2009 (it appears to be a resubmission of the previously filed Application) and review of the record shows the Veteran has been employed since that time. Specifically, records from the Social Security Administration note the Veteran's last substantially gainful activity was April 26, 2016. On remand, the Veteran will have an opportunity to provide an updated Application. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding VA and private treatment records pertinent to the Veteran's claims, to specifically include complete updated treatment records from VA medical facilities in Cincinnati, Columbus, Dayton and Chillicothe as well as private treatment records from OSU Wexner Medical Center. 2. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete and return to the AOJ. He should be instructed to report periods when he was in school, the education and/or training provided, the specific start and end dates for each employer, the address of the employer, and his income for all positions held since April 2013, one year prior to receipt of his April 2014 increased rating claim. 3. After the action requested in paragraph 1 is complete, schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of his low back disability. After interview and, if feasible, examination of the Veteran and review of his claims file, the examiner should respond to the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability, diagnosed as degenerative arthritis of the spine on June 2016 VA back examination, had its clinical onset during service or is otherwise related to his active duty, including when he fell and sustained a left knee injury? Please explain. b) If (a) is answered no, is it at least as likely as not (50 percent or greater probability) that his currently diagnosed low back disability is caused by a service-connected disability/ies, including left lower extremity CRPS, residuals of left knee injury with chondromalacia, left knee instability, left knee limitation of extension, left knee scar, left foot calluses, and/or altered/imbalanced gait? Please explain. c) If (b) is answered no, is it at least as likely as not (50 percent or greater probability) that his currently diagnosed low back disability has been aggravated (any increase in disability) by a service-connected disability/ies, including left lower extremity CRPS, residuals of left knee injury with chondromalacia, left knee instability, left knee limitation of extension, left knee scar, left foot calluses and/or altered/imbalanced gait? Please explain. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. After the action requested in paragraph 1 is complete, schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of his right knee disability. After interview and, if feasible, examination of the Veteran and review of his claims file, the examiner should respond to the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability, diagnosed as mild degenerative joint disease on December 2009 X-ray study, had its clinical onset during service or is otherwise related to his active duty, including when he fell and sustained a left knee injury? Please explain. b) If (a) is answered no, is it at least as likely as not (50 percent or greater probability) that his currently diagnosed right knee disability is proximately due to (caused by) a service-connected disability/ies, including left lower extremity CRPS, residuals of left knee injury with chondromalacia, left knee instability, left knee limitation of extension, left knee scar, left foot calluses and/or altered/imbalanced gait? Please explain. c) If (b) is answered no, is it at least as likely as not (50 percent or greater probability) that his currently diagnosed right knee disability has been aggravated (any increase in disability) by a service-connected disability/ies, including left lower extremity CRPS, residuals of left knee injury with chondromalacia, left knee instability, left knee limitation of extension, left knee scar, left foot calluses and/or altered/imbalanced gait? Please explain. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 5. After the development in paragraph 1 has been completed, please schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to evaluate the severity of the Veteran's depressive disorder. The examination report should include a discussion of the Veteran's psychiatric history, his reported symptoms and the effect of his psychiatric disability on any occupational functioning and activities of daily living. 6. After the record is determined to be complete, schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) and medical opinion to determine the nature and severity of (1) his left lower extremity CRPS and (2) his left knee scar. After interview and, if feasible, examination of the Veteran and review of his claims file, the examiner should provide a full description and report all signs and symptoms of the left lower extremity CRPS and left knee scar. (a.) The clinician is requested to opine as to the severity of the left lower extremity CRPS without consideration of the ameliorative effects of medication. (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should reconcile the subjective complaints with the objective findings and discuss the effect of the Veteran's left lower extremity disabilities, including the service-connected left knee and left foot disabilities, on any occupational functioning and activities of daily living. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.