Citation Nr: 21022986 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 11-26 642A DATE: April 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disorder is remanded. Entitlement to service connection for a bladder disorder with voiding dysfunction is remanded. Entitlement to service connection for diabetes mellitus type 2 is remanded. Entitlement to service connection for bilateral neuropathy of the hands is remanded. Entitlement to service connection for bilateral neuropathy of the feet is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a vision disorder is remanded. REFERRED The issue of whether there was clear and unmistakable error (CUE) in the August 2009 rating decision that continued a 10-percent rating for chondromalacia patella femoral pain syndrome of the right knee is referred to the agency of original jurisdiction (AOJ) for appropriate action. REASONS FOR REMAND The Veteran served on active duty from October 1958 to October 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of August 2009. In September 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this matter in February 2019. 1. Entitlement to a rating in excess of 10 percent for chondromalacia patella femoral pain syndrome of the right knee. A rating decision of October 2005 granted service connection for chondromalacia/patellofemoral pain syndrome of the right knee. A 10-percent evaluation, effective July 17, 2002, was established. In April 2009, the Veteran filed a claim for rating increase, which was denied by a rating decision of August 2009. The Veteran appealed by filing a notice of disagreement (NOD) in November 2009 and VA Form 9 in October 2011. In his testimony before the Board, the Veteran stated that, by the time he reaches the 5th floor of his building, he must sit down for 10 to 15 minutes due to right knee pain. He most recently underwent a VA examination for the knees in January 2021 and reported at that time that his right knee pain worsens with prolonged walking, standing, or sitting. The VA examiner determined that the examination was not being conducted during a flare-up or after repetitive use over time, and that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with flare-ups or with repeated use over time. No estimate as to the range of motion during a flare-up or with repetitive use over time was provided. VA examiners are generally required to offer a flare-up opinion based on estimates derived from information procured from relevant sources, including lay (non-expert) statements. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. In Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), a VA examination was determined to be inadequate because the examiner, although acknowledging that the appellant was not then suffering from a flare-up of any of his conditions, failed to use alternative means to ascertain information such as the frequency, duration, characteristics, and severity of the disability and the functional loss regarding flare-ups. The Board’s February 2019 remand required a VA examiner to attempt to ascertain information regarding any flare-ups by alternative means, if the examination was not conducted during a flare-up. The examiner was to estimate additional functional loss in terms of ranges of motion based on the Veteran's statements, available medical records, and other relevant sources. Although the January 2021 VA examiner noted that the Veteran “denies flare-ups,” there appears to be record evidence of flare-ups and/or functional impairment with repeated use over time, as noted above with respect to the Veteran’s competent reporting. The examiner should have considered the Veteran’s lay reports. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). A VA examination report must describe a disability in sufficient detail so that the Board’s evaluation of it will be fully informed. If a report lacks sufficient detail, it is incumbent upon the rating board to return it as inadequate for evaluation purposes. 38 C.F.R. §§ 4.2, 19.9(a). Under the circumstances, the Board will remand for a new VA examination. Furthermore, the Board’s February 2019 remand required estimates of additional loss of range of motion during a flare-up. The VA examiner failed to provide the estimates without an adequate explanation. Accordingly, a remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2009 rating decision, by its terms, continued the 10-percent rating for the right knee. The September 2009 VA notification letter concerning the August 2009 rating decision informed the Veteran, on the one hand, that it had been determined that the right knee disability had not changed and that the compensation payment would continue unchanged, and, on the other hand, that the percentage assigned for the right knee disability was 30 percent. The Veteran argued in his hearing testimony of September 2018 that the notification letter’s reference to a 30-percent rating represents a “procedural error or clear and unmistakable error” in the rating decision of August 2009 and requires that a 30- percent rating be established from the date of the April 2009 claim for rating increase. An assertion of clear and unmistakable error (CUE) in a rating decision is a motion or request, not a claim. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a); see also Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011), aff’d 695 F.3d 1257 (Fed. Cir. 2012). Because the CUE issue has not been adjudicated by AOJ, the Board will refer it to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). 2. Entitlement to service connection for bladder disorder. In May 2009, the Veteran filed a service-connection claim for “bladder condition voiding.” The scope of the claim includes any disability that may reasonably be encompassed by the description of the claims, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A rating decision of August 2009 denied service connection for “bladder condition to include voiding.” The Veteran appealed by filing a NOD in November 2009 and VA Form 9 in October 2011. The Veteran testified before the Board that, during service, he often “bounced around” in, and jumped off of, the back of a truck. He stated that his bladder problems began during service and have continued to the present. He attributes his bladder and voiding condition to in-service injury incurred from the trucks and/or by a concussion caused by his firing of a 105mm Howitzer. The Veteran underwent a VA examination for urinary tract conditions in January 2021. The diagnosis was benign prostatic hyperplasia, which was noted to be asymptomatic and treated with Tamsulosin. The Veteran related that, while he initially had some mild urinary retention, his voiding has been normal since he began taking medication. He said that he is followed by civilian urology. He denied nocturia, difficulty starting or stopping his stream, or a frequent or urgent need to urinate. The examiner found him not to have a voiding dysfunction, a history of urethral or bladder calculi, a history of recurrent symptomatic bladder or urethral infections, or other bladder or urethral conditions. The VA examiner, a nurse practitioner, initially offered a negative nexus opinion, but it was, in effect, retracted by a subsequent nexus opinion (also negative) provided by the same examiner. Specifically, an addendum opinion of January 2021 stated at the outset that the rationale for the previous opinion should be “disregarded” and that the “correct response” would now be given. The Board will therefore treat the addendum opinion as the only opinion associated with the January 2021 examination. A VA examination and medical opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board considers the January 2021 addendum opinion to be inadequate for the following reasons. In finding a current bladder disorder to be less likely than not incurred during service, the examiner reasoned, in part, that the “medical records are silent for recurrent infections, kidney/bladder damage or complete bladder retention.” The report and nexus opinion focused on a diagnosis of benign prostatic hyperplasia (BHP). There was no acknowledgement that a VA treatment record of April 2020 lists urinary frequency as an active problem that was diagnosed in July 2005 and that a VA ultrasound record of July 2020 notes a poorly distended urinary bladder. Adjudication of the claim requires a VA addendum opinion that fully accounts for the medical history and is adequate for evaluation purposes. 38 C.F.R. §§ 4.2, 19.9(a). In addition, the examination report failed to consider the Veteran’s testimony before the Board that he “uses the washroom a lot,” that he gets up to go to the bathroom between two and four time per night, and that he “can’t say how many times” he uses the bathroom during the day. The Veteran’s lay reports should have been acknowledged and considered, even if the report of the Veteran at the examination was that his voiding was currently normal. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). The requirement of a “current disability” is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board’s February 2019 remand required that the Veteran’s testimony be considered and discussed by a medical professional with appropriate expertise in arriving at a nexus opinion for a bladder condition. The remand also stated that, if there were a medical basis to support or doubt the history provided by the Veteran, the clinician was to note it and provide a rationale for the opinion. Because there was not substantial compliance with this directive, a remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for diabetes mellitus type 2. 4. Entitlement to service connection for bilateral neuropathy of the hands. 5. Entitlement to service connection for bilateral neuropathy of the feet. 6. Entitlement to service connection for erectile dysfunction. 7. Entitlement to service connection for a vision disorder. The Veteran’s May 2009 filing included service-connection claims for type 2 diabetes, neuropathy of the hands and feet, erectile dysfunction, and a vision disorder. The claims were denied by a rating decision of August 2009. The Veteran appealed by filing a NOD in November 2009 and VA Form 9 in October 2011. The Veteran most recently underwent a VA examination for diabetes mellitus in January 2021. He has diabetes mellitus type 2 and was found to have diabetic peripheral neuropathy as a complication of diabetes. Furthermore, his erectile dysfunction was determined to be at least as likely as not due to his diabetes. A January 2021 VA examination report for diabetic sensory–motor peripheral neuropathy found that he has bilateral diabetic peripheral neuropathy of the upper and lower extremities. A VA treatment record of February 2009 diagnosed “probable dry eyes.” No VA examination with respect to a claimed vision disorder has been scheduled. A VA examination and medical opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board considers the medical opinion of the January 2021 VA examiner for diabetes to be inadequate, because the opinion as to secondary service connection is unclear. Specifically, the examiner determined both 1) that the service treatment records show no diagnosis or treatment of diabetes, which did not manifest within one year of service separation, and 2) that the Veteran’s diabetes clearly and unmistakably existed prior to service and was aggravated beyond its natural progression by an in-service injury, event, or illness. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this case, the Board must remand for a new medical opinion. 38 C.F.R. §§ 4.2, 19.9(a). The claims of entitlement to service connection for peripheral neuropathy of the hands and feet, erectile dysfunction, and a vision disorder must also be remanded as being inextricably intertwined with the claim relating to diabetes mellitus. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Undertake appropriate development to associate with the record any outstanding VA treatment records and any outstanding and identified private medical records that are pertinent to the remanded issues. All efforts to obtain the records should be documented in the claims folder. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner must fully describe the knee disability and report all signs and symptoms necessary for evaluating the knee disability under the rating criteria, including as to any right knee instability. To the extent possible, the examiner must test the Veteran’s range of motion with pain on active motion, passive motion, with weight-bearing, and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary or medically appropriate in this case, the examiner should explain why. The examiner must attempt to elicit information from the Veteran regarding the severity, frequency, and duration of any right knee flare-ups and with repeated use over time, and the degree of functional loss during flare-ups and with repeated use over time. The examiner must estimate the effect of any functional losses during flare-ups and with repetitive use over time, including due to pain, incoordination, lack of endurance, weakness, and fatigability, by equating the disability experienced due to all such losses to loss of motion (stated in degrees) beyond what is shown clinically. The additional functional impairment must be expressed in terms of the degree of additional loss of range of motion to the extent possible. Notify the examiner that VA regulations anticipate that examiners, in providing an opinion as to any additional functional loss during flare-ups or with repetitive use over time, will make estimates based on information procured from relevant sources, including lay statements from a veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. This includes ascertaining by alternative means such information as the frequency, duration, characteristics, severity, or functional loss during flare-ups and/or with repetitive use over time. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, repetitive use over time, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record (additional facts are required), or the fact that the examiner does not have the knowledge or training. Notify the examiner that the fact that an examination is not occurring during a flare-up or after repeated use over time is an insufficient reason for not providing an estimate of functional loss during a flare-up or after repeated use over time. 3. Obtain an opinion from an appropriate clinician to determine the nature and etiology of any bladder disorder. An additional VA examination may be scheduled if needed to provide the requested opinion. The clinician must identify all bladder disorders or recurrent bladder symptoms at any time since the Veteran’s claim was filed in May 2009, even if now resolved. The clinician must opine as to whether any such disorder at least as likely as not: a. Is related to an in-service disease, injury, or event; b. Had its inception during service; or c. Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability or any other disorder, to include diabetes mellitus and/or benign prostatic hyperplasia, and to include medication taken for diabetes mellitus type 2. The clinician must consider and discuss the Veteran’s testimony before the Board in September 2018 as to the onset and history of his experienced bladder symptoms. If the Veteran’s medical history indicates that a diagnosis relating to the bladder has changed, the clinician must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder. Notify the clinician that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the clinician that a layperson, such as the Veteran, is generally competent to attest to matters of which he or she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt any lay (non-expert) report of record, the clinician must indicate this in the examination report and provide a rationale for that determination. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 4. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s diabetes mellitus type 2. An additional VA examination may be scheduled if needed to provide the requested opinion. The examiner must opine as to whether any such disorder at least as likely as not: a. Had its onset during service or is otherwise related a disease, injury, or event of service; or b. Manifested within one year after discharge from service, or manifested with symptoms that were noted during service with continuity of the same symptomatology since service. The examiner must also opine as to whether it is at least as likely as not that one or more of the following disorders is proximately due to, or aggravated beyond its natural progression by, the Veteran’s diabetes mellitus type 2 or by any other disorder, to include medication taken for diabetes mellitus type 2: a. peripheral neuropathy of the upper extremities; b. peripheral neuropathy of the lower extremities; c. bladder condition; d. erectile dysfunction; and/or e. vision disorder, to include probably dry eyes. Notify the examiner that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that the Veteran, as a layperson, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 5. Following the above development and any other warranted development, readjudicate the issues on appeal. If any benefit sought remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative and, after the Veteran has had the requisite opportunity to respond, return the appeal to the Board for appellate review, if otherwise in order. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven D. Najarian, 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.