Citation Nr: 21016207 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 15-41 867 DATE: March 22, 2021 REMANDED Entitlement to an initial rating in excess of 50 percent for bipolar disorder is remanded. Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia is remanded. Entitlement to an initial rating in excess of 10 percent for vertigo is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1988 to April 1990, with additional National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims in March 2019 to obtain medical records from the Social Security Administration and to obtain contemporaneous VA examinations for the conditions of right knee chondromalacia and vertigo. With respect to all these conditions, the RO checked in August 2020 for any new VA records, without any success. An administrative note in November 2019 indicated attempts to reach the Veteran had been unsuccessful, and she was not receiving VA treatment. The last actual treatment note was from 2018. However, these communications were from the VA in Des Moines, and the Veteran moved to Texas in Fall 2018, and there is no indication the RO ever searched for records at Texas VA facilities. 1. Entitlement to an initial rating in excess of 50 percent for bipolar disorder The most recent VA psychiatric examination was conducted over 6 years ago, in December 2014. Additionally, VA medical records, medical records from the Social Security Administration, supporting lay statements, and private medical records have been received, which indicate that the Veteran’s bipolar symptoms may have worsened. See May 2017 Disability Benefits Questionnaire. As such, a new VA examination is warranted. 2. Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia In August 2020, the Veteran was afforded a VA knee examination to assess the current level of disability. The Veteran stated that her knee has gotten worse and that she has constant aching. She also reported that pain increases with movement from a seated to standing position, walking stairs, and walking prolonged distances. The examiner indicated that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time. However, in assessing the functional impact of the Veteran’s right knee disability the examiner indicated that the Veteran has decreased tolerance with prolonged standing, walking, and sitting with the knee at flexion. This statement is inconsistent with the examiner’s finding that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time. The examiner also noted additional factors contributing to disability as disturbance of locomotion, interference with sitting, and interference with standing. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”). In this case, it is unclear upon what basis the examiner determined that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time and the examiner provided no explanation for the discrepancy. As such, the examiner’s opinion is inadequate. Furthermore, because the examiner determined that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time, the examiner did not address loss of range of motion caused by factors impacting her functional ability and contributing to disability, and apparently did not obtain information to determine whether the Veteran has additional loss of range of motion caused by prolonged standing, walking, and sitting. As such, the Veteran must be afforded a new examination so the examiner may consider any additional loss of range of motion. Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, additional action is warranted. 3. Entitlement to an initial rating in excess of 10 percent for vertigo In August 2020, the Veteran was afforded a VA ear examination. The examiner acknowledged that the Veteran has a diagnosed vestibular condition of vertigo. The Veteran reported that she has daily episodes of vertigo but reported no other symptoms. After specifying in the report that the Veteran has vertigo, the examiner indicated that the Veteran does not have a vestibular condition and provided no information regarding the Veteran’s episodes of vertigo, such as, frequency, whether gait is affected, or if there is staggering. Such information is crucial in providing an accurate evaluation of the Veteran’s current level of disability. Because the examiner failed to include information necessary to properly evaluate the Veteran’s current level of disability, the examiner’s opinion is inadequate. See Barr; see also Nieves-Rodriguez. Therefore, the Veteran must be afforded a new VA ear examination that fully considers and discusses the Veteran’s vertigo symptomology. 4. Entitlement to a TDIU As the Veteran’s TDIU claim is inextricably intertwined with the claim on appeal, action on that matter is deferred. 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 new VA mental disorders examination should address any functional impairment caused by the Veteran’s bipolar disorder in order to address the issue of entitlement to a TDIU. The matters are REMANDED for the following action: 1. Search for VA medical records from 2018 to present from the VA medical centers/clinics in Texas that would cover Killeen and San Antonio. 2. DO NOT SCHEDULE THE FOLLOWING until all attempts have been made to locate VA records described above. 3. Schedule the Veteran for an examination to determine the current severity of her service-connected bipolar disorder. The claims file must be made available to the examiner, and all necessary tests and studies should be accomplished. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner is also asked to include information as to any occupational limitations the Veteran may have due to her service-connected bipolar disorder. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. Schedule the Veteran for a VA orthopedic examination to determine the severity of her service-connected right knee disability. The claims file must be made available to the examiner, and all necessary tests and studies should be accomplished. All pertinent symptomatology and findings referable to the Veteran’s right knee should be reported in detail, including range of motion testing. The examiner should set forth the Veteran’s range of motion findings and note any pain, pain on use (to include the point during range of motion at which the Veteran reports pain), weakness, incoordination, or excess fatigability. If feasible, the examiner should portray any additional functional limitation of the right knee due to these factors in terms of degrees of additional loss of motion. If not feasible, this should be stated and discussed in the examination report. If the Veteran does not have pain or any of the other factors, that fact should also be noted. If the examiner determines that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time, the examiner must explain how such a finding is consistent with the Veteran’s decreased tolerance with prolonged standing, walking, and sitting with the knee at flexion. In so doing, the examiner must address the findings of the August 2020 VA knee examination. 5. Schedule the Veteran for an examination to determine the current severity of her service-connected vertigo. The examiner must address the frequency of the Veteran’s vertigo episodes, whether her vertigo affects her gait, and whether the Veteran’s vertigo episodes include staggering. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, 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.