Citation Nr: 21077358 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 13-28 233 DATE: December 29, 2021 REMANDED An increased rating for transient ischemic attack (stroke) residuals with difficulty chewing and swallowing in excess of 10 percent is remanded. An increased rating for thalamic pain syndrome of the left side, as a stroke residual, in excess of 40 percent since January 6, 2011, is remanded. An increased rating for hemisensory loss of the left side, as a stroke residual, in excess of 10 percent since January 6, 2011, is remanded. An increased rating for voiding dysfunction, as a stroke residual, in excess of 10 percent, or compensable prior to April 21, 2021, is remanded. An increased rating for gastrointestinal symptoms with chronic constipation, as a stroke residual, of compensable, to include prior to April 21, 2021, is remanded. An increased rating for unspecified depressive disorder with anxious distress (mental health disorder), as a stroke residual, in excess of 50 percent, or compensable prior to May 25, 2021, is remanded. An increased rating for a right knee disability in excess of 10 percent is remanded. An increased rating for a left knee disability in excess of 10 percent is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1987 to June 1996. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The decision identified a January 6, 2011, claim via phone call, which concerned stroke residuals, as confirmed in a February 2011 call. The date of claim for the increased rating issues for the bilateral knees is unclear. However, the decision noted duty to assist (VCAA) letters to the Veteran in March 2011, which addressed stroke residuals, and January 2012, which noted that his claim had been amended to include the bilateral knee increased rating issues. The Board remanded this matter in September 2017 and August 2020. Another remand is necessary to attempt to develop potentially relevant evidence. The stroke issue that initially came before the Board was an increased rating for residuals rated at 10 percent since 2003 under Diagnostic Code (DC) 8008-8205, which represents stroke residuals (8008) affecting the 5th (trigeminal) cranial nerve (8205). 38 C.F.R. § 4.124a. In September 2017, the Board granted service connection for thalamic pain syndrome and left hemisensory loss, both affecting the left side of the Veteran's body, as residuals of the stroke. In 2017 and 2020, the Board also directed development to determine any other stroke residuals and rate them under applicable codes, as instructed in DC 8008 to rate stroke residuals separately after the first six months (prior to the appeal period). Id. The Board noted that stroke residuals should be rated in proportion to the impairment of motor, sensory, or mental function referring to the appropriate bodily system. Id. In this regard, a September 2017 rating decision implemented the Board's awards, assigning a 40 percent rating for thalamic pain syndrome of the left side under DC 8199-8045, which represents an unlisted disability analogous to migraines (8199) as a residual of traumatic brain injury (8045), effective since January 6, 2011. The 2017 rating decision also assigned a 10 percent rating for hemisensory loss of the left side under DC 8108-8911, which represents narcolepsy (8108) from epilepsy or seizure disorder (8911), effective since January 6, 2011. A September 2021 rating decision changed the code for hemisensory loss to DC 8211 for the 11th (or spinal accessory, external branch) cranial nerve, effective since April 21, 2011, but continued the 10 percent rating. The RO explained that the Board had determined that the condition was inappropriately rated as a seizure disorder. The September 2021 rating decision also granted service connection or separate ratings for stroke residuals of voiding dysfunction, rated 10 percent effective since April 21, 2021; gastrointestinal symptoms with chronic constipation, rated 0 percent (or noncompensable) effective since April 21, 2021; and unspecified depressive disorder with anxious distress (mental health disorder), rated 50 percent effective since May 25, 2021. This rating decision continued the prior 10 percent rating for difficulty chewing and swallowing, as a symptom affecting the fifth (trigeminal) cranial nerve under DC 8205, which had been in effect since 2003. Although no notice of disagreement was submitted for these separate ratings, entitlement to a higher rating for each stroke residual is under the Board's jurisdiction because DC 8008 directs the assignment of residual stroke ratings. Additionally, because the majority of the separate ratings were made effective well after the January 6, 2011, date of claim, entitlement to a compensable rating prior to the current effective dates in April 2021 and May 2021 is also before the Board. The effective date should be based on all evidence to determine when the disability or severity first manifested, not solely the date of a diagnosis or examination report. See 38 C.F.R. § 3.400(o); Swain v. McDonald, 27 Vet. App. 219 (2015). These aspects of the ratings are essentially entitlement to compensable or increased ratings prior to the current effective date, not a separate effective date claim. The Board also previously remanded the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). A September 2021 rating decision granted a TDIU, effective January 6, 2011, stating that this was a full grant of this benefit based on the date of claim that has been specified throughout the appeal. This issue is no longer before the Board. 1. , 2., 3., 4., 5., and 6. Entitlement to an increased rating for stroke residuals affecting the 5th cranial nerve, including difficulty chewing and swallowing, in excess of 10 percent; an increased rating for thalamic pain syndrome of the left side in excess of 40 percent since January 6, 2011; an increased rating for hemisensory loss of the left side in excess of 10 percent since January 6, 2011; an increased rating for voiding dysfunction in excess of 10 percent, or compensable prior to April 21, 2021; an increased rating for gastrointestinal symptoms with chronic constipation of compensable, to include prior to April 21, 2021; and an increased rating for a mental health disorder in excess of 50 percent, or compensable prior to May 25, 2021, are remanded. As previously directed, the RO requested the Veteran to identify any non-VA records. VA obtained records from multiple identified private providers, which were received in September 2019, October 2019, April 2021, August 2021, and September 2021. VA notified the Veteran in September 2021 that records from Dr. T were not available, and there is documentation of multiple attempts made. There is no suggestion of additional available outstanding non-VA treatment records. VA also obtained updated VA treatment records since June 2017, which are dated through September 2021, as directed. The claims file also includes prior records since at least June 2009; however, there several gaps until October 2016. The most relevant information for the increased rating claims is within one year prior to the January 6, 2011, claim; or since approximately January 2010. There appear to be gaps in the claims file from April 2010 through March 2011, as well as subsequently. For example, in an August 2021 records release authorization form, the Veteran identified treatment from Dr. W since January 2013 as being at a VA facility, which he had previously identified as for mental health treatment since June 2014. There is a gap in the VA records in the claims file from July 2012 through July 2013, then until June 2014, then until October 2016. There may also be other relevant information for his stroke residuals in outstanding VA records. Thus, any outstanding VA treatment records should be added to his claims file. Additionally, there is an indication of relevant outstanding records from the Social Security Administration (SSA), which have not yet been requested. The Veteran and his wife have reported that he last worked in 2008 or 2009, and a doctor's letter received in July 2012 noted that the Veteran was evaluated for his SSA application and had not worked since his second stroke in April 2009. During a February 2018 mental health VA examination, the Veteran reported receiving SSA disability benefits for his stroke, knees, and other conditions; and he again reported in his February 2019 mental health VA examination that he was not working and was receiving SSA disability benefits. A September 2021 inquiry reflects that the SSA found the Veteran disabled effective since June 2009, with benefits since 2012. Although a TDIU has been granted since 2011, these records may have relevant information for the nature and severity of his stroke residuals. Therefore, all available medical or SSA decision records should be obtained. The 2017 Board remand directed that additional VA examinations be obtained to determine the nature and severity of the Veteran's stroke residuals. The Veteran was provided several VA examinations in January 2019, including for headaches, mental health, and central nervous system. The 2020 Board remand found failure to substantially comply with these prior remand directives. VA examinations and addendum reports from April 2021 to August 2021 addressed the central nerve system, cranial nerve, peripheral nerves, eyes, mental health, and gastrointestinal symptoms including chewing and swallowing difficulties related to the cranial nerve. As directed, the examinations addressed the effects of his thalamic pain syndrome and left hemisensory loss on his function, including from pain or limitation of motion, to include on the nerves affecting the upper and lower extremities, any effects on his gait or bilateral knees, his motor, sensory, and mental function. The cranial nerves examination addressed complaints of constant pain in the forehead and eye area on the left side, which appears to include complaints of headaches occurring on that side, along with other left-side areas. As noted above, additional separate ratings were granted as a result of these examinations, although the ratings do not appear to address his symptoms throughout the appeal period. There is no argument or suggestion of inadequacy in these VA examination reports or an increase in severity since that time. The Veteran's treatment records after the examinations will be considered. 7. and 8. An increased rating for a right knee disability in excess of 10 percent; and an increased rating for a left knee disability in excess of 10 percent are remanded. Any records obtained upon remand may contain relevant information for the knee disabilities. Therefore, these issues are also remanded for additional consideration. Additionally, a VA examination was provided for the Veteran's knees in January 2019, which addressed requirements under Correia, as directed in the 2017 Board remand. He had a left knee surgery in April 2018 and a right knee surgery in January 2019, shortly after his VA examination. A May 2019 rating decision granted temporary total disability ratings for convalescence for both surgeries, which are separate rating issues that he did not appeal to the Board. Another VA examination should be provided to determine the Veteran's disability level after the period of convalescence from the right knee surgery, which went through the end of February 2019. The examiner should give an estimate for any additional loss during flareups or repeated use over time, to the extent possible. The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA treatment records for the Veteran, to include from April 2010 through March 2011, from February 2012 through October 2016, and since September 2021; to include mental health and medical records. If records for any of these periods do not exist or are unavailable, documentation should be included in the claims file. 2. Contact the SSA to obtain all medical records and decision-related documents related to the Veteran's disability claim and any updated information. 3. After completing the above directives, provide a VA examination to determine the current nature and severity of the Veteran's bilateral knee disabilities. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.