Citation Nr: 21024992 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-12 610 DATE: April 27, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease, lumbar spine is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome, right knee is remanded. Entitlement to a rating in excess of 10 percent for allergic rhinitis is remanded. Entitlement to a compensable rating for hypertension is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2003 to January 2005. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from October 2011 and April 2012 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran perfected a timely appeal to those decisions. On January 6, 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease, lumbar spine is remanded. The Veteran essentially maintains that her lumbar spine disability is more disabling than reflected by the 20 percent rating currently assigned. At her personal hearing in January 2021, the Veteran testified that she occasionally has difficulty getting out of bed because of her back disorder. The Veteran indicated that she is unable to stand or sit as long as she used to because of her back; she also reported having back spasms with weather changes. She further noted that she recently lost her job partly because of the back disorder. In March 2021, and following the Board’s January 2021 hearing, the Veteran underwent a back examination. However, the agency of original jurisdiction (AOJ) did not issue a supplemental statement of the case. Neither the Veteran nor her representative submitted a waiver of AOJ consideration. A March 2021 letter to the Veteran and his representative inquired as to whether he would waive initial AOJ consideration of this newly received evidence; the Veteran did not reply to this letter. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case must be furnished to the Veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the AOJ to suspend, this requirement. 38 C.F.R. § 20.1304(c). Therefore, the Board has no choice but to remand these claims so that the AOJ can consider the newly associated evidence in the first instance. 2. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome, right knee is remanded. The Veteran seeks a rating in excess of 10 percent for her service-connected patellofemoral pain syndrome of the right knee. At her personal hearing in January 2021, the Veteran testified that her condition has gotten worse since she was last examined in October 2010. The Veteran reported that the knee occasionally locks up and she has difficulty bending the knee. The Veteran indicated that she has trouble going up and down stairs; she also reported experiencing a burning sensation in the right knee. In light of the Veteran's testimony, as well as the fact that the Veteran's service-connected disability has not been assessed at a VA examination since October 2010, more than 10 years, another examination is required to evaluate the current nature of the right knee disability. Thus, to ensure that the record reflects the current extent of this disability, the Board finds that a remand is necessary in order to afford the Veteran a VA examination to determine the nature and severity of her right knee disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In addition, subsequent to the Veteran's October 2010 VA examination, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, supra. See also Sharp v. Shulkin, supra. The examination addressing the right knee disability did not account for these findings. Thus, the Court's holding in Correia and Sharp establishes additional requirements that must be met prior to finding that a VA examination is adequate. For this reason, the increased rating claim for the right knee is remanded. 3. Entitlement to a rating in excess of 10 percent for allergic rhinitis is remanded. 4. Entitlement to a compensable rating for hypertension is remanded. The Veteran essentially contends that her hypertension and allergic rhinitis are more disabling than reflected by the ratings currently assigned. The Board notes that the most recent VA examinations to evaluate the Veteran's service-connected allergic rhinitis and hypertension was conducted in October 2010, more than 10 years ago. However, during the January 2021 Board hearing, the Veteran testified that her conditions have worsened. In this regard, the Veteran reported that she suffers from more frequent allergy symptoms, and her medications have been adjusted as her hypertension has increased with frequent headaches and edema. Given the evidence of increased symptomatology, and the length of time since the last VA examinations, a remand is warranted to obtain contemporaneous examinations for the service-connected allergic rhinitis and hypertension. See Snuffer v. Gober, supra; Caffrey v. Brown, supra; VAOPGCPREC 11-95 (1995). 5. Entitlement to a TDIU Throughout the appeal period, to include a January 2021 submission of a VA Form 21-8940 (Veteran's Application for Increased Compensation based on Unemployability), the Veteran has indicated that her service-connected disabilities, including degenerative disc disease of the lumbar spine, right knee and allergic rhinitis have prevented her from being able to obtain or maintain substantially gainful employment. As such, the Board finds that the claim for a TDIU rating is also before the Board due to having been raised in the context of the Veteran's increased rating claims for degenerative disc disease of the lumbar spine, right knee disability, allergic rhinitis, and hypertension which are currently on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Because a decision on the remanded issues could significantly impact a decision on the TDIU rating issue, the issues are inextricably intertwined. A remand of the TDIU claim is required. See Harris v. Derwinski, 1 Vet. App. 181 (1991). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, ensure that the Veteran is scheduled for a VA examination in order to determine the current severity of her right knee patellofemoral syndrome. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner(s). All appropriate tests, studies, and consultation should be accomplished, and all clinical findings should be reported in detail. **If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's right knee patellofemoral syndrome. (B) The examiner should record the range of motion of the right knee on flexion and extension as observed on clinical evaluation in terms of degrees. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If there is clinical evidence of pain on motion, or any of the other above-noted symptoms, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of her right knee patellofemoral syndrome, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner should also comment as to whether (and if so, to what extent, (i.e., slight, moderate, or severe)) the Veteran's right knee patellofemoral syndrome results in recurrent subluxation or lateral instability. The examiner should also indicate whether there is dislocated or removed semilunar cartilage and, if so, the nature of the symptoms associated with such meniscus impairment. (F) The examiner should comment upon the functional impairment resulting from the Veteran's right knee patellofemoral syndrome. A rationale for any opinion offered should be provided. 3. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her allergic rhinitis. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. **If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. 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 should address how the Veteran’s allergic rhinitis impacts her functioning and ability to obtain or maintain substantially gainful employment. 4. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her hypertension. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. **If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. 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 should address how the Veteran's hypertension impacts her functioning and ability to obtain or maintain substantially gainful employment. 5. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, given an opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if in order. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Suzie S. Gaston, 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.