Citation Nr: 21022223 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-28 366A DATE: April 15, 2021 REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to an initial rating in excess of 10 percent prior to January 26, 2017, for degenerative disc disease of the lumbar spine, low back strain status post decompression surgery with intervertebral disc syndrome (IVDS), for a rating in excess of 20 percent prior to March 9, 2020, and for a rating in excess of 40 percent after March 19, 2020, is remanded. Entitlement to specially adapted housing is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded.   REASONS FOR REMAND The appellant is a Veteran who served on active duty from June 1986 to January 1990. The issues of entitlement to service connection for right hip, left hip, and right knee disabilities come before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in September 2020, which vacated a February 2019 Board decision as to these matters and remanding them for additional development. The Board’s denial of service connection for left knee and bilateral foot disabilities was affirmed. The issues initially arose from an April 2016 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The hypertension, back disability, specially adapted housing, and TDIU issues are before the Board on appeal from rating decisions in November 2010, April 2016, February 2018, and March 2018. They were remanded by the Board for additional development in February 2019. The Board notes that the Veteran perfected an appeal from a November 2010 rating decision establishing service connection for degenerative disc disease of the lumbar spine, low back strain status post decompression surgery, and assigning a 10 percent rating effective from May 5, 2010. A statement of the case was issued on November 9, 2012, and a VA Form 9 signed on November 15, 2012, is postmarked November 19, 2012. VA rating action in May 2017 granted an increased 20 percent rating effective from January 27, 2017, for degenerative disc disease of the lumbar spine, low back strain status post decompression surgery with IVDS. The issue for appellate review as to the matter has been accordingly revised.   1. Entitlement to service connection for a right hip disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. In its September 2020 memorandum decision the Court found the Board had relied upon inadequate January 2016 VA examination findings that the Veteran did not have current right or left hip disabilities and failing to address whether right knee pain was aggravated by his low back or hip conditions. It was additionally noted, citing Saunders v. Wilkie, 886 F.3d 1356 (2018), that no explanation had been provided addressing whether hip pain resulted in a functional loss sufficient to be considered a disability. The Board finds that an additional VA examination is required as to these matters prior to appellate review. 4. Entitlement to service connection for hypertension is remanded. 5. Entitlement to an initial rating in excess of 10 percent prior to January 26, 2017, for degenerative disc disease of the lumbar spine, low back strain status post decompression surgery with IVDS, for a rating in excess of 20 percent prior to March 9, 2020, and for a rating in excess of 40 percent after March 19, 2020, is remanded. 6. Entitlement to specially adapted housing is remanded. 7. Entitlement to a TDIU is remanded. The issues of service connection for hypertension, an increased initial back disability rating, specially adapted housing, and TDIU were previously remanded. However, additional development is required as to the matters for adequate determinations. In correspondence received in April 2018 (associated with a notice of disagreement), the Veteran’s attorney referenced medical articles as indicating pain medications can increase blood pressure for some individuals and that elevated blood pressure levels at rest were associated with an increased sensitivity to acute pain and a higher intensity to chronic pain. In an August 2020 brief the Veteran’s attorney also asserted that higher ratings and/or earlier effective dates for the assigned back disability ratings were warranted. It was additionally asserted that the adjudication of the specially adapted housing and TDIU issues “failed to account for all of the Veteran’s conditions” and raised the theory of entitlement to a TDIU based upon marginal employment. The Board notes that VA medical opinions addressing the Veteran’s hypertension claim were obtained in December 2017 and December 2019. Neither opinion, however, specifically addressed the claim as to proximate cause or aggravation due to medications taken for service-connected disability. The Board also notes that the available evidence as to the severity of the Veteran’s back disability, and its impact on his employability, includes inconsistent or conflicting reports over the course of the appeal. Further, VA treatment records dated subsequent to his March 2020 VA examination noted the Veteran complained of worsening low back pain, reported having had level 10 pain for approximately three to four days, reported having missed one day of work, and reported he had plans to see a neurosurgeon. The Veteran was shown to be currently employed as a cost analyst by the March 2020 examiner and other records indicate gainful employment during the appeal. However, his marginal employment theory for TDIU has not been developed and conflicting reports have been received as to the number of days missed from employment due to service-connected disability. In his December 2017 VA Form 21-8940 he estimated he had lost 25 days from illness during employment from July 2016 to December 2017 and he reported an estimated 25 days lost from work in 2017 during his February 2018 VA examination. His employer during this period provided a February 2018 statement noting he had no time lost during the 12 months preceding employment termination. As to the specially adapted housing and TDIU issues, the Veteran contends that all of his service-connected disabilities were not adequately considered. It is significant to note that service connection is established with a 10 percent rating for radiculopathy of the right lower extremity (sciatic nerve) but that the March 2020 VA examiner found his right sciatic nerve radiculopathy was severe. The Veteran is also service-connected for adjustment disorder with mixed anxiety and depressed mood, for radiculopathy of the right and left lower extremities involving the sciatic, anterior crural, obturator, and ilio-inguinal nerves, and for a residual scar. In light of the Veteran’s recent claims, the Board finds that further development is required for an adequate opinion as to his hypertension claim, to assess the current severity of his service-connected back disability, and to clarify the apparently inconsistent reports as to the degree of interference with employment due to his service-connected back disability, including any marginal employment, over the course of the appeal. He should be requested to provide additional information pertinent to his treatment after March 2020 and clarifying information describing any marginal employment or time missed from work during the appeal. Although it is unclear if the Veteran believes he has other, unadjudicated increased rating claims pertinent to his specially adapted housing and TDIU claims, the Board finds the claims are inextricably intertwined with the increased rating back disability issue on appeal. The matters are REMANDED for the following action: 1. Request that the Veteran provide additional information pertinent to his treatment for a back disability after March 2020 and clarifying information describing any marginal employment or time missed from work during the appeal. He should also be requested to clarify whether he believes he has other, unadjudicated increased rating claims pertinent to his specially adapted housing and TDIU claims. 2. Schedule the Veteran for a VA examination for his claimed right hip, left hip, and right knee disabilities. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to address whether the Veteran has a right hip, left hip, or right knee disability, manifest currently or for any identified period of time during the appeal, that: a. is at least as likely as not related to active service. b. is proximately due to a service-connected disability(ies) or symptoms or treatment/medications related thereto. c. underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability(ies) or symptoms or treatment/medications related thereto. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Any additional examinations or testing necessary for an adequate opinion should be conducted. A complete rationale for the opinions must be provided. 3. Obtain an addendum opinion from a VA physician, or other appropriate medical professional if a physician is not available and the examiner’s qualifications are adequately identified, addressing whether the Veteran has a hypertension disability, manifest currently or for any identified period of time during the appeal, that: a. is at least as likely as not related to active service. b. is proximately due to a service-connected disability(ies) or symptoms or treatment/medications related thereto. c. underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability(ies) or symptoms or treatment/medications related thereto. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The examiner must acknowledge review of the medical article reference provided by the Veteran in April 2018 and any other applicable medical literature considered. Any additional examinations or testing necessary for an adequate opinion should be conducted. A complete rationale for the opinions must be provided. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative disc disease of the lumbar spine, low back strain status post decompression surgery with IVDS. 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 must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to specially adapted housing and a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.