Citation Nr: 21029202 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-05 795 DATE: May 12, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a left elbow disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right leg and/or knee disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a right foot disorder, to include numbness is remanded. Entitlement to service connection for a right shin disorder, to include numbness is remanded. Entitlement to service connection for pelvic fracture residuals is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 26, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1977 to August 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2017 video conference hearing. This case was previously before the Board in March 2018 when it was remanded for additional development. During the pendency of the appeal, a February 2020 rating decision granted TDIU effective October 26, 2010. As TDIU was not granted for the entire period on appeal, the issue of entitlement to TDIU prior to October 26, 2010, remains on appeal. See Payne v. Wilkie, 31 Vet. App. 373 (2019; Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Entitlement to a rating in excess of 10 percent for a left elbow disability is remanded. 2. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. 3. Entitlement to service connection for a left shoulder disorder, to include chronic pain is remanded. 4. Entitlement to service connection for a right leg and/or knee disorder is remanded. 5. Entitlement to service connection for a back disorder is remanded. 6. Entitlement to service connection for a right foot disorder, to include numbness is remanded. 7. Entitlement to service connection for a right shin disorder, to include numbness is remanded. 8. Entitlement to service connection for pelvic fracture residuals is remanded. 9. Entitlement to service connection for hypertension is remanded. In March 2018, the Board remanded these matters, in part, to secure missing VA treatment records from the Atlanta VA Medical Center (VAMC) and Hinesville, Georgia Community Based Outpatient Clinic (CBOC), as well as request private treatment records from Toledo University Medical Center and Henry Medical General. Although the AOJ sent the Veteran two development letters in December 2018 and October 2019 requesting authorization to obtain the aforementioned VA and private medical records, it failed to obtain records from Atlanta VAMC and Hinesville, Georgia CBOC. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Thus, remand is necessary to ensure substantial compliance with the March 2018 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As remand is necessary, the AOJ should also provide the Veteran with another opportunity to submit the necessary authorizations to obtain private treatment records from Toledo University Medical Center and Henry Medical General. Additionally, the Board notes that the AOJ canceled all VA examinations because the Veteran indicated he would be in Georgia during the winter months but did not offer the Veteran an opportunity to reschedule the examinations. On remand, the AOJ should schedule the Veteran for VA examinations to determine the current nature and severity of his service-connected left knee and left elbow disabilities, as well as the nature and etiology of any disorders of the left shoulder (to include chronic pain), right leg and/or knee, back, right foot, right shin, hypertension, and pelvis, taking into account the Veteran's report that he spends winters in Georgia. 10. Entitlement to TDIU prior to October 26, 2010, is remanded. The Veteran's claim for TDIU prior to October 26, 2010, is inextricably intertwined with his pending service connection and increased rating claims. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See 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.) The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include Toledo Outpatient Clinic; Ann Arbor VAMC; Atlanta VAMC; Hinesville, GA CBOC; and Stockbridge, GA CBOC, then associate them with the claims file. 2. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent private treatment records that are not of record and associate them with claims file. This should specifically include records from Toledo University Medical Center and Henry Medical General. Any negative response should be in writing and associated with the claims file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms of his back disorder; right leg and/or knee disorder; right foot numbness; hypertension; right shin numbness; left shoulder disorder, to include chronic pain; and residuals of a pelvis fracture; and the nature, extent and severity of his service-connected left elbow and left knee symptomatology and the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Considering the Veteran's report that he spends winters in Georgia, schedule the Veteran for a VA examination(s) (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his service-connected left elbow and left knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. (a.) The examiner should identify all left elbow and left knee pathologies found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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. (b.) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (c.) The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training 5. Considering the Veteran's report that he spends winters in Georgia, schedule the Veteran for a VA examination(s) (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of any disorders of the left shoulder (to include chronic pain), right leg and/or knee, back, right foot (to include numbness), right shin (to include numbness), hypertension, and residuals of a pelvic fracture pelvis. After conducting any necessary testing and taking into account the Veteran's history, the examiner must diagnose any current disorders of the left shoulder, right leg and/or knee, back, right foot, right shin, hypertension, and residuals of a pelvic fracture, and opine as to: (a.) whether it is at least as likely as not that any left shoulder disorder, to include chronic pain, is etiologically related to or had its onset in service. (b.) whether it is at least as likely as not that any left shoulder disorder, to include chronic pain, was caused or aggravated by a service-connected disability. (c.) whether it is at least as likely as not that any right leg and/or knee disorder is etiologically related to or had its onset in service. (d.) whether it is at least as likely as not that any right leg and/or knee disorder was caused or aggravated by a service-connected disability, to include his left knee disability. (e.) whether it is at least as likely as not that any back disorder is etiologically related to or had its onset in service. (f.) whether it is at least as likely as not that any back disorder was caused or aggravated by a service-connected disability, to include his service-connected left knee disability. (g.) whether it is at least as likely as not that any right foot disorder, to include numbness, is etiologically related to or had its onset in service. (h.) whether it is at least as likely as not that any right foot disorder, to include numbness, was caused or aggravated by a service-connected disability. (i.) whether it is at least as likely as not that any right shin disorder, to include numbness, is etiologically related to or had its onset in service. (j.) whether it is at least as likely as not that any right shin disorder, to include numbness, was caused or aggravated by a service-connected disability. (k.) whether it is at least as likely as not that hypertension is etiologically related to or had its onset in service. (l.) whether it is at least as likely as not that hypertension was caused or aggravated by a service-connected disability. (m.) whether it is at least as likely as not that any residuals of a pelvis fracture are etiologically related to or had its onset in service. (n.) whether it is at least as likely as not that any residuals of a pelvis fracture were caused or aggravated by a service-connected disability. Please note that the examiner must answer both the causation and aggravation portions of the question or the response will be deemed inadequate. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.