Citation Nr: 21010495 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-39 261 DATE: February 25, 2021 REMANDED Entitlement to a rating in excess of 10 percent for postoperative left knee meniscectomy with osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee lateral instability is remanded. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to a back disability, is remanded. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to a back disability, is remanded. Entitlement to service connection for a left shoulder disability, as secondary to a left lower extremity disability, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to December 28, 2016, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1976 to August 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In December 2017, the Veteran and his former representative testified at a videoconference hearing before a VA Decision Review Officer (DRO). In July 2019, the Veteran’s representative withdrew from this matter with the Veteran’s consent. See July 2019 VA Form 21-4138. Thus, the Veteran is unrepresented and is proceeding in this matter pro se. In August 2020, the Veteran testified at a virtual hearing before the undersigned. Prior to reaching the Board, this appeal included the issue of entitlement to service connection for a lumbar spine disability with bilateral radiculopathy. See December 2016 Notice of Disagreement (NOD). In March 2018, the AOJ granted service connection for a low back disability, which resolved that aspect of the Veteran’s appeal with a fully-favorable outcome. The Veteran subsequently appealed the initial rating assigned in the March 2018 rating decision and the AOJ issued a Statement of the Case (SOC). See April 2020 SOC. The Veteran did not perfect this appeal and thus the issue of entitlement to an increased initial rating for a back disability is not before the Board. If the Veteran wishes to seek an increased rating for his back disability, he is encouraged to file a claim on the appropriate VA-promulgated form. See also August 2020 Board Hearing Transcript at 27-28. However, the appeal as to the issue of service connection for bilateral radiculopathy has not been resolved and is addressed below. The issue of entitlement to a TDIU is raised by the record and is part and parcel of the increased rating claim on appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (VA’s duty to maximize benefits includes exploring entitlement to a TDIU and secondary service connection as part of schedular rating); see also December 2016 NOD (explicitly raising entitlement to a TDIU as intertwined with the appeal seeking an increased rating for left knee disability). In this regard, while the Veteran has not disagreed with the effective date of a TDIU assigned by the April 2019 rating decision, the issue of entitlement to a TDIU prior to December 28, 2016 was raised as part of this appeal and the issue remains in appellate status notwithstanding the partial grant by the AOJ. See Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Entitlement to a rating in excess of 10 percent for postoperative left knee meniscectomy with osteoarthritis is remanded. 2. Entitlement to a rating in excess of 10 percent for left knee lateral instability is remanded. Additional development is necessary with respect to the appeal seeking an increased rating for a left knee disability. In this regard, the Veteran most recently presented for examinations in January 2018 and April 2018. The Veteran denied flare-ups at the June 2016 examination; however, he reported flare-ups at the January 2018 and April 2018 examinations, but the examiners did not adequately describe his flare-ups in terms of range of motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). On remand, an adequate opinion as to functional loss during flare-ups in terms of range of motion should be obtained. Additionally, new criteria for rating knee disabilities recently became effective and the Veteran could be entitled to a higher prospective rating based on these new criteria. On remand, he should be afforded another examination and the examiner should specifically address the new rating criteria. Moreover, complete VA treatment records must be secured, as well as any outstanding relevant private treatment records. The Board acknowledges that the Veteran testified as to the presence of neurological symptoms in his left lower extremity. As discussed below, this issue is encompassed in his appeal, but the AOJ must first issue an SOC, and the Veteran is encouraged to perfect this appeal by filing a VA Form 9 after the AOJ issues an SOC if he wishes to pursue this issue. 3. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to a back disability, is remanded. 4. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to a back disability, is remanded. The Board observes that the August 2016 rating decision determined that no revision as to the prior decision to deny compensation for a back disability was warranted, and in December 2016 the Veteran filed an NOD disagreeing with the denial of service connection for a lumbar spine disability with bilateral radiculopathy. See December 2016 NOD. The Veteran was subsequently granted entitlement to service connection for a back disability, but not radiculopathy. Thus, the issue of compensation for bilateral radiculopathy remains on appeal. See, e.g., Beard v. Tran, No. 19-5133, 2021 U.S. App. Vet. Claims LEXIS 190 (Feb. 9, 2021) (directing the Board to consider whether the AOJ’s award of service connection constitutes a full grant of the benefit sought on appeal, where the record raised the issue of compensation for symptoms not included in the AOJ’s award of service connection). On remand, the AOJ should issue an SOC addressing this issue. See Manlincon v. West, 12 Vet. App. 238 (1999). At the Board hearing, the Veteran testified as to neurological issues in his left lower extremity. The Board has bifurcated the issue of compensation for bilateral radiculopathy to afford the Veteran the option of focusing any appeal, if he so desires. 5. Entitlement to service connection for a left shoulder disability, as secondary to a left lower extremity disability, is remanded. At the Board hearing, the Veteran testified that he fell and sustained a left shoulder injury due to his left knee disability. His VA treatment records corroborate his report of current a left shoulder disability resulting from a fall. See, e.g., December 22, 2017 VA Domiciliary Attending Note; January 19, 2018 VA Physical Medical Note. The Board observes that at the Board hearing, the Veteran testified that he sustained the injury “at home” and reported additional falls due to his left knee giving out, while his VA treatment notes show his report of sustaining the left shoulder injury after tripping over furniture with the lights out. See December 1, 2017 VA Domiciliary Treatment Note. On remand, the Veteran should be afforded an examination and a medical opinion should be secured as to whether the Veteran has a left shoulder disability that is proximately due to or aggravated by his service-connected left knee disability. 6. Entitlement to a TDIU prior to December 28, 2016, to include on an extraschedular basis, is remanded. The Veteran is currently in receipt of a TDIU from December 28, 2016. Prior to December 28, 2016, he is in receipt of service connection for a lumbar spine disability, a left knee disability, and a left ring finger disability with a combined 40 percent disability evaluation, which does not meet the schedular criteria for a TDIU. However, it is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16(b). The United States Court of Appeals for Veterans Claims (Veterans Court) has held that the initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58, 66-7 (2019). While the Veterans Court has not defined the threshold of evidence sufficient to “substantiate a reasonable possibility” in this context, the Board observes that in other contexts the Veterans Court has found this to be a “low” threshold. See, e.g., Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (noting that Congress intended a low threshold by requiring a claim to be reopened unless there is no reasonable possibility of substantiating a claim). Here, the Veteran has not been employed in a substantially gainful occupation since 2009. See, e.g., February 2017 VA Form 21-4192. Moreover, the September 2008 examination report noted difficulty with prolonged sitting, standing, walking, kneeling, squatting, climbing up and down stairs and heavy lifting, which are aspects of his previous employment as a truck driver. See, e.g., September 2008 Knee Examination Report (Remarks). Indeed, the Social Security Administration (SSA) determined that the Veteran was disabled by reason of his back disability and arthritis, and the Veteran is service-connected prior to 2016 for his back disability and knee arthritis. The Board finds that, on the present record, this meets the low threshold for an initial extraschedular referral. Accordingly, the issue of entitlement to a TDIU prior to December 28, 2016, to include on an extraschedular basis, is remanded for referral to the Director of Compensation Service. See Bowling v. Principi, 15 Vet. App. 1 (2001). Additionally, the AOJ should also secure outstanding Veteran Readiness and Employment (VR&E) records, if any. The matters are REMANDED for the following action: 1. Secure the Veteran’s complete VA treatment records. 2. With any necessary assistance from the Veteran, secure any outstanding relevant private treatment records, to include records from Cedars Hospital. 3. Secure outstanding VR&E records, if any. 4. Schedule the Veteran for an examination to determine the nature and severity of his left knee disability. The claims file should be made available to and should be reviewed by the examiner. All findings should be reported in detail. The examiner should provide an opinion describing functional impairment of the Veteran’s left knee disability during a flare-up or after repeated use over time (i.e. after activities such prolonged standing, walking, and running squatting, climbing stairs, and repetitive kneeling) accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner should include a discussion of any specific facts that cannot be determined if unable to opine without speculation. In addressing the severity of the Veteran’s knee disability, to include associated instability, the examiner should discuss his use of a brace and cane, as well evidence showing a MORSE Fall Scale Score of 60 indicating that he is at high risk of falls. See December 16, 2017 VA ER Note. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. Schedule the Veteran for an examination to determine the nature and etiology of his left shoulder disability. The claims file should be made available to and should be reviewed by the examiner. All necessary tests should be performed. Please opine as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s claimed left shoulder disability: (a) is proximately due to a service-connected disability, to include as a result from falls caused by his left knee disability or other service-connected left leg disability; or (b) has been aggravated (worsened beyond natural progression) by a service-disability, to include as a result of falls caused by his left knee disability or other service-connected left leg disability. Please address each subpart separately. In addressing this question, the examiner should discuss whether the Veteran’s left shoulder disability is proximately due to or was aggravated by reason of a fall caused by a service-connected disability. The examiner’s attention is invited to the Veteran’s VA treatment notes showing his report of tripping over furniture at home with the lights out, see December 1, 2017 VA Domiciliary Treatment Note, as well as his hearing testimony that he fell on multiple occasions, including a fall at home, as well as a fall while trying to catch the bus and a fall at his grandson’s football game. See Hearing Transcript at 6-9. In providing an opinion, the examiner should accept the lay statements of record as true, including the Veteran’s report of recurrent falls and his report of sustaining the left shoulder injury while tripping over furniture with the lights out. However, the examiner may discuss whether the Veteran’s left shoulder disability is “medically consistent” with the reported circumstances of his injury. If the examiner is of the opinion that the Veteran’s left shoulder disability was not incurred by a service-connected disability (e.g. a fall caused the disability but the fall was not due to service-connected disability), he or she should address whether the incurred disability was aggravated (worsened beyond natural progression) by service-connected disability (i.e. was the left shoulder disability aggravated by a subsequent fall that is due to service-connected disability). A complete rationale must be provided for all opinions. If the requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 6. If, after taking the above action, the Veteran still does meet the criteria for a schedular TDIU prior to December 28, 2016, refer his entitlement to an extraschedular TDIU to the Director of Compensation Service. The Director’s attention is invited to the SSA determination that the Veteran was disabled due to his back disability and osteoarthritis. 7. Separately, issue an SOC addressing entitlement to service connection for left lower extremity radiculopathy and entitlement to service connection for right lower extremity radiculopathy, along with appellate rights. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate 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.