Citation Nr: 21027584 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-08 643 DATE: May 6, 2021 REMANDED Entitlement to an increased disability evaluation for internal derangement of the left knee, currently rated as 10 percent disabling, is remanded. Entitlement to service connection for a lumbar spine disorder, including as secondary to service-connected disabilities, is remanded. Entitlement to service connection for residuals of the removal of lipoma, left leg, including as secondary to service-connected internal derangement of the left knee, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from December 1965 to December 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision. The Board notes that in addition to the issues listed on the title page, the April 2013 rating decision denied the Veteran's service connection claims for a right eye condition (also claimed as glaucoma) and a left eye condition; his requests to reopen his previously denied claims for hypertension and a right knee disorder (also claimed as right leg), and his claim for entitlement to a special home adaptation grant. The Veteran filed a timely notice of disagreement for all the issues denied in the April 2013 rating decision in February 2014, and the agency of original jurisdiction (AOJ) issued a January 2016 Statement of the Case (SOC). In the March 2016 VA Form 9, the Veteran, through his representative, noted that he was only appealing his increased rating claim for his left knee disability, his service connection claim for a left leg condition, his service connection claim for a back disorder, and his claim for a TDIU. The Board notes that in an August 2019 statement, the Veteran's current representative asserted that the Veteran's March 2016 VA Form 9 had also included his request to reopen his previously denied service connection claim for a right knee disorder and his claim for a special home adaptation grant. However, the Veteran did not include these issues with the other issues he specifically listed in his VA Form 9 when he limited his appeal of the January 2016 SOC. The Board also notes that the AOJ and Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). However, there is no evidence in this case that the AOJ continued to treat the Veteran's request to reopen his previously denied service connection claim for a right knee disorder or his claim for a special home adaptation grant as active appeals. As such, the Board does not find that these issues are currently on appeal. The Board notes that on February 12, 2019, the Board sent the Veteran a letter copied to his then current representative informing him that he had 90 days from the date of the letter to request a change in representation or to submit additional argument or evidence. Within 90 days of this letter in March 2019, the Veteran changed his representative to attorney Vincent J. Pastore. The Board also notes that in a May 2019 statement, the Veteran's current representative responded to the February 12, 2019 letter by requesting for the record to be kept open for an additional 90 days in order to obtain a medical opinion in support of the Veteran's claim. In a subsequent July 23, 2019 statement, the Veteran's representative amended the prior request by requesting for the record to be held open for 90 days from the date of the statement in order to submit a brief in support of the Veteran's claims. In August 2019, the Veteran's representative referenced his prior July 23, 2019 request to submit a brief in lieu of a hearing within 90 days of the request, or by October 21, 2019; and the representative noted that he was now submitting the brief in lieu of hearing in relation to the July 23, 2019 request, as well as an August 2019 medical opinion related to the Veteran's claims. The representative did not request for any additional time to submit evidence or argument. Based on the foregoing, the Board does not find that there are any outstanding extension requests for the current appeal. In response to the Veteran's request for a Board videoconference hearing in his March 2016 VA Form 9, a May 2019 letter notified the Veteran that the requested hearing was scheduled for August 2019. However, the Veteran's representative later withdrew this request in a July 2019 statement and has not submitted any subsequent hearing requests. As such, there are no outstanding Board hearing requests. 1. Entitlement to an increased disability evaluation for internal derangement of the left knee, currently rated as 10 percent disabling, is remanded. The Board observes that Veteran was most recently afforded a VA examination in connection with his service-connected left knee disability in April 2011. At that time, the examiner reported that there was no objective evidence of instability. Since that time, a May 2014 VA treatment record noted the Veteran's report that he had falls due to left knee pain and losing balance. In an August 2019 statement, the Veteran's representative also included the May 2014 record in his discussion of the evidence that he indicated is demonstrative of worsening in the Veteran's left knee disability. As this evidence suggests a worsening in the severity of the Veteran's left knee disability, the Veteran must be provided with a VA examination which considers the current severity of his service-connected left knee disability on appeal. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the claims on appeal for the rating period since December 2015 should be associated with the Veteran's claims file. 2. Entitlement to service connection for a lumbar spine disorder, including as secondary to service-connected disabilities, is remanded. 3. Entitlement to service connection for residuals of the removal of lipoma, left leg, including as secondary to service-connected internal derangement of the left knee, is remanded. With respect to the Veteran's claims of entitlement to service connection for residuals of a lipoma of the left leg and entitlement to service connection for a lumbar spine disorder, the Board observes that the Veteran has not yet been afforded VA examinations in connection with his claims. In this regard, the Board notes that the Veteran was treated for a lipoma of the left leg in August 2010; VA treatment records dated May 2010 reflect that the Veteran's lipoma may have been clinically correlated to "an old injury." Subsequent treatment records reflect ongoing left leg complaints and a diagnosis of left leg complex regional pain syndrome; an August 2019 private medical opinion concluded that the Veteran's left leg pain is secondary to his service-connected internal derangement of the left knee. Additionally, VA treatment records reflect that the Veteran has been treated for chronic back pain, and diagnosed with diffuse degenerative spondylosis with disc disease of the lumbar spine; the Veteran asserts that his lumbar spine disorder is causally related to his service-connected left knee disability and/or his left leg complex regional pain syndrome, on appeal. Accordingly, the Board finds that the Veteran should be afforded VA examinations regarding these claims for service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). 4. Entitlement to TDIU is remanded. The TDIU claim is part and parcel of an increased rating claim being referred to the AOJ, and vice versa. Rice v. Shinseki, 22 Vet. App. 447 (2009). Given that additional development is required as to the Veteran's claim of entitlement to an increased disability evaluation for his left knee and his claims of entitlement to service connection for a left leg disorder and a lumbar spine disorder, and a disability rating and an effective date for the award of benefits will be assigned if an increased disability evaluation and/or service connection are awarded, the Board finds that a decision on the remaining issue of entitlement to TDIU must be deferred to allow the AOJ the opportunity to readjudicate the Veteran's claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claimed disabilities on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Associate with the claims file the Veteran's VA treatment records from any VA facility identified by a review of the record, since December 2015. 3. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a VA knee examination to ascertain the current severity and manifestations of the Veteran's service-connected internal derangement of the left knee. The claims file should be made available to the examiner for review in connection with the examination. The examination reports should include a statement as to the effect of the service-connected internal derangement of the left knee on his occupational functioning and daily activities. In particular, the examiner should provide the range of motion in degrees and test the range of motion in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) nonweight-bearing. This testing must be conducted for both the joint in question and any paired joint. The VA examiner is requested to provide an estimate as to functional loss due to flare-ups of the Veteran's service-connected internal derangement of the left knee. 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. The VA examiner must provide a complete rationale for any opinions provided. 4. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's claimed left leg disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, and include discussion of the Veteran's documented medical history and assertions. The examiner should then render an opinion as to whether the Veteran has a left leg disorder that is at least as likely as not (50 percent probability or more) related to any event, illness, or injury during service. If the Veteran has a left leg disorder that is not related to his military service, the VA examiner should provide an opinion as to whether his current left leg disorder is at least as likely as not (i.e. a 50 percent probability or greater) was either (i) caused by or (ii) aggravated by the Veteran's service-connected left knee disability. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. The examiner is advised that the Veteran is competent to report symptoms, including continuity of symptoms, treatment, and diagnoses and the examiner must take into account, along with the other evidence of record, the Veteran's statements in formulating the requested opinions. A complete rationale, with specific reference to the relevant evidence of record, must accompany each opinion provided. The VA examiner must discuss with specificity the significance of the findings contained within the August 2019 private medical opinion, and explain any discrepancies in the findings of the VA examination in contrast to the findings discussed in the August 2019 private medical opinion. 5. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's claimed lumbar spine disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and include discussion of the Veteran's documented medical history and assertions. The examiner should then render an opinion as to whether the Veteran has a lumbar spine disorder that is at least as likely as not (50 percent probability or more) related to any event, illness, or injury during service. If the Veteran has a lumbar spine disorder that is not related to his military service, the VA examiner should provide an opinion as to whether his current lumbar spine disorder is at least as likely as not (i.e. a 50 percent probability or greater) (i) caused by or (ii) aggravated by the Veteran's service-connected left knee disability. If the Veteran's left leg disorder is deemed to be causally related to the Veteran's service, including as secondary to his service-connected left knee disability, the VA examiner should provide an opinion as to whether his current lumbar spine disorder is at least as likely as not (i.e. a 50 percent probability or greater) (i) caused by or (ii) aggravated by the Veteran's service-connected left leg disability. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. The examiner is advised that the Veteran is competent to report symptoms, including continuity of symptoms, treatment, and diagnoses and the examiner must take into account, along with the other evidence of record, the Veteran's statements in formulating the requested opinions. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. (Continued on the next page) 6. After completing all indicated development, the AOJ should readjudicate the claims on appeal, in light of all of the evidence of record. If the claims remain denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. If necessary, return the case to the Board for further appellate review. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hallie E. Brokowsky, 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.