Citation Nr: 21008618 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-62 025 DATE: February 17, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a thoracolumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee instability is remanded. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to a compensable rating for a right knee meniscal tear is remanded. Entitlement to service connection for a disability of the right lower extremity is remanded. Entitlement to service connection for a disability of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1986 to May 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2013, January 2019 and August 2019 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020 the Veteran testified at a virtual hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. The Board finds that more development is necessary prior to final adjudication of the claims on appeal. Regarding the Veteran’s claims for a rating in excess of 20 percent for a thoracolumbar spine disability, a rating in excess of 10 percent for left knee osteoarthritis, left knee instability and right knee osteoarthritis and entitlement to a compensable rating for a right knee meniscal tear, the Board notes that the last VA examination for these service-connected disabilities took place in June 2019. Notably, at his August 2020 hearing, the Veteran testified that his service-connected lumbar spine and bilateral knee disabilities had worsened since his last VA examination in June 2019. The Veteran specifically testified that his spine symptoms had worsened over the past year since his June 2019 VA examination as his forward flexion had diminished. The Veteran reported that he now had difficulties bending down and tying his shoes as his back seemed to “lock up”. He also noted that he had received treatment at the VA Medical Center which had demonstrated diminished flexion. Regarding his bilateral knee disabilities, the Veteran testified that while the June 2019 VA examination demonstrated improvement of his knees, they had not improved as he continued to have locking, flare-ups and incapacitating episodes as a result of his knee disabilities. The Veteran also testified that his treatment has demonstrated that his legs are getting more bowlegged and his kneecaps are no longer centered due to the deterioration of his knees. Given that the Veteran indicated that his service-connected lumbar spine and bilateral knee disabilities had worsened and he appears to be receiving continued treatment for these disabilities, the Board is of the opinion that new VA examinations would be probative. Although a new VA examination is not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, to ensure that the record reflects the current severity of the Veteran’s service-connected lumbar spine and bilateral knee disabilities, contemporaneous examinations are warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous”). Regarding the Veteran’s claims for service connection for disabilities of the bilateral lower extremities, the Board notes that in the January 2019 rating decision, the RO denied entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. This denial was based on an October 2018 VA examination in which the examiner, a nurse practitioner, found that the Veteran had bilateral peripheral neuropathy which was less likely than not related to the Veteran’s thoracolumbar spine disability. The examiner indicated that the Veteran’s peripheral neuropathy was related to his nonservice-connected diabetes mellitus. Notably, the examiner did not provide an opinion on whether the Veteran’s service-connected thoracolumbar spine disability aggravated his claimed lower extremity disability. However, at the August 2020 hearing, the Veteran’s representative specifically indicated that while the rating decision denied the Veteran’s service connection claims based on peripheral neuropathy being related to nonservice-connected diabetes, the Veteran in fact had radiculopathy and not peripheral neuropathy of his bilateral lower extremities which was secondary to his service-connected thoracolumbar spine disability. Notably, a June 2019 VA examination indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and did not have any other neurologic abnormalities. However, at the August 2020 hearing, the Veteran testified that he continued to experience “a sharp, shooting, radiating pain” that emanated from his back and was distinct from neuropathy. The Board additionally notes that the Veteran’s lower extremity claims are intertwined with his claim for an increased rating for his thoracolumbar spine disability as that development may provide relevant evidence as to these claims. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Thus, the Board finds that the evidence currently of record is insufficient to resolve the claims for entitlement to service connection for bilateral lower extremity disabilities, and that further opinion in connection with these claims is necessary for a fully informed evaluation of the claim on appeal. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 3.159(c) (4). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for VA examination before an appropriate physician to determine the current level of severity of his service-connected thoracolumbar spine and bilateral knee disabilities. The Veteran’s claims file and a copy of this remand must be provided to the examiner(s) for review in conjunction with these examinations, and the examination reports should reflect review of these items. All necessary tests and studies should be performed, and the examiner(s) should describe in detail all symptomatology associated with the Veteran’s thoracolumbar spine and bilateral knee disabilities. The examiner should also provide an opinion concerning the impact of the Veteran’s service-connected thoracolumbar spine and bilateral knee disabilities on his ability to work. 3. Schedule the Veteran for a VA examination to determine the etiology of the claimed bilateral lower extremity disabilities. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a bilateral lower extremity disability, to include radiculopathy, that is related to any incident of the Veteran’s active duty service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that the Veteran has current a bilateral lower extremity disability, to include radiculopathy, that is caused or aggravated by his service-connected thoracolumbar spine disability. If the examiner finds that the Veteran has a bilateral lower extremity disability, to include radiculopathy, that has been permanently aggravated/worsened by his service-connected thoracolumbar spine disability, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. (Continued on the next page)   Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 4. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.