Citation Nr: 21029922 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-38 047 DATE: May 17, 2021 REMANDED The claim for clear and unmistakable evidence (CUE) in the initial assignment of a 30 percent disability rating for service-connected migraines is remanded. The claim of an increased rating, in excess of 10 percent, for degenerative joint disease of the right knee (right knee disability) is remanded. The claim of an increased, compensable rating for left knee strain (left knee disability) is remanded. The service connection claim for vertigo is remanded. The service connection claim for a right hip disability is remanded. The claim of an increased rating, in excess of 10 percent, for degenerative joint disease of the right wrist (right wrist DJD) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1992 to April 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2015 and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Although the Veteran initially requested for a Board hearing, she rescinded her request and waived her right to appear before Veterans Law Judge. See October 2019 Brief. In a December 2018 rating decision, the AOJ granted an earlier effective date of July 27, 2015 for the award of an increased, 50 percent rating for service-connected migraines. Although this December 2018 rating decision suggests that this is a full grant of benefits sought on appeal, the Veteran continues to challenge the effective date of the assignment of the increased, 50 percent disability rating for migraines. The Board regrets further delay, but finds that additional developments are necessary before it may render a decision on the remaining issues on appeal. 1. CUE for Earlier Effective Date for Increased Rating for Migraines Despite the assignment of an earlier effective date of July 27, 2015, for a 50 percent disability rating for service-connected migraines, the Veteran asserts entitlement to an even earlier effective date than the July 27, 2015. In an October 2019 appellate brief, the Veteran asserts that based on a review of VA examinations, the Veteran's migraine conditions have always warranted a 50 percent evaluation, since the day after her discharge from active service; the assignment of an original, 30 percent rating for her service-connected migraines is clearly and unmistakably erroneous; and that this error should be corrected to 50 percent. The United States Court of Appeals for Veterans Claims held that each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). Within this appeal for an earlier effective date for service-connected migraines, the Veteran raises a new claim for clear and unmistakable error. Thus, as the Veteran is raising this issue for the first time in this appeal and the RO has not yet adjudicated this issue, the Board does not have jurisdiction over this new CUE matter. In this regard, the Board must defer consideration of this claim to enable the RO to consider the Veteran's CUE motion in the first instance. 2. Right Wrist & Right and Left Knee (Bilateral Knee) Disabilities The last time the Veteran was afforded VA examinations for her bilateral knee and right wrist disabilities was in March 2015 and May 2015 respectively. She asserts that her knee conditions have worsened, to include increased pain, locking, and bucking. She also asserts entitlement to a separate, compensable rating for her meniscal residuals and instability. See October 2019 Appellate Brief. In addition to the Veteran's assertions, the Board also acknowledges that the current severity of her wrist disability is unclear. Thus, as it has been six years since the Veteran was afforded comprehensive VA examinations on her right wrist and bilateral knee disabilities, a remand is required for contemporaneous VA examinations to evaluate the current severity of her right wrist and bilateral knee disabilities. 3. Vertigo The Veteran asserts that she has vertigo, which began in service, while she was stationed at Hill Airforce Base in Utah, prior to 2001. She explained that her vertigo has continued throughout her career, and that to this day, she continues to experience episodes of vertigo at various times during the month. See August 2019 Appellate Brief. In a February 2014 disability benefits questionnaire (DBQ) for ear conditions, including vestibular and infectious conditions), a VA examiner found that the Veteran did not have a diagnosis of vertigo. However, the Veteran was not afforded an in-person VA examination, and even though this DBQ noted that the Veteran did not have benign paroxysmal positional vertigo, medical treatment records reflect contrary findings. For example, a January 2002 private treatment note reflects that the Veteran's past medical history "is consistent with vertigo; an April 2014 private treatment note reflects a diagnosis of "positive benign positional vertigo"; and a July 2015 VA physical medicine rehabilitation consult note indicates that the Veteran "has vertigo[, although she does not have any seizures]. Likewise, the Veteran's service treatment records (STRs) reflects that the Veteran had episodes of vertigo during her active service. See e.g. June 2007 Correspondence from Dr. C.E.T.; see also July 2007 Correspondence from Dr. C.E.T. (noting that the Veteran was having episodes of vertigo that were associated with blurred dots in her peripheral vision). Thus, as the evidence is, in fact, reflective of current vertigo episodes, the Veteran's competent, credible testimony about onset and continuity of symptoms, and in-service complaints and conditions for vertigo, a remand is required for a VA examination and opinion on the nexus between the Veteran's in-service conditions and her current vertigo. See McClendon v. Nicholson, 20 Vet. App. 79, 85 - 86 (2006). 4. Right Hip Disability The Veteran asserts that her hip disability is causally related to her active service. She explains that STRs contain extensive complaints and treatment for her right hip injury, which she sustained during physical training in 2006. She further explains that since a 2014 VA examination, she has sought care for hip pain, with X-ray findings of degenerative changes to the hip. See October 2019 Appellate Brief. Although a February 2014 DBQ reflects that the Veteran does not have a current hip disability, and that the Veteran had right hip dislocation that resolved, medical treatment records reflect contrary findings. For example, a September 2014 primary care note reflects that the Veteran complained of an "intermittent right hip popping and aching" type pain. Although the Veteran was scheduled for an MRI of the hip, and numerous treatment records indicated that the Veteran would undergo an MRI, it appears that the Veteran did not undergo an MRI for the hip, even though the Veteran requested for one. See e.g. February 2014 Primary Care Nurse Practitioner Note; see also April 2016 Primary Care Note (reflecting that an X-ray of the hip was ordered); see too, October 2017 Primary Care Note (reflecting that the Veteran asked whether it would be possible to get a hip X-ray because her hip had "been really bothering [her,] to include sitting, standing and walking", and that her knee was "popping a lot more than it used to."). Likewise, STRs reflect, for example, an August 2007 in-service MRI of the right hip, which indicates the Veteran complained of chronic, persistent right hip pain and discomfort, with a feeling of popping out that occurred one year prior to this June 2007 MRI. Additionally, the Board notes that a June 2010 private treatment note reflects that the Veteran had trauma to the right leg in July 2009, and in which the Veteran underwent an examination of the right high and low thigh. Thus, the evidence suggests that the Veteran's right thigh disability may be secondary to her service-connected right knee disability. Thus, as the evidence reflects a current right hip disability, to include chronic right hip pain, the Veteran's competent, credible testimony about onset and continuity of symptoms, in-service complaints and treatment for a right hip condition, and the possibility that the Veteran's right hip disability is secondary to her service-connected right knee disability, a remand is required for a VA examination and opinion on the etiology of the Veteran's right hip disability. Finally, and as noted above, the Veteran asserts that since her last VA examination for the hip, she has sought treatment for her hip condition and that she has been diagnosed with right hip degenerative changes. As the Veteran's treatment records are not current and up-to-date in the claims file, the AOJ must also obtain all outstanding treatment records, on remand, and associate them with the claims file. The matters are REMANDED for the following action: 1. Undertake all necessary steps to develop and adjudicate the referenced motion concerning whether there was CUE in the initial assignment of 30 percent disability rating, rather than a 50 percent disability rating, for the Veteran's service-connected migraines. 2. Also, obtain the requisite authorization and release, and obtain all outstanding and/or updated private and VA treatment records and associate them with the claims file. 3. Schedule the Veteran for a new VA examination to determine the current severity of the Veteran's right wrist and bilateral knee disabilities. The appropriate disability benefits questionnaire form should be utilized. a. For each disability, conduct range of motion testing, specifically noting the motion in degrees, in both active motion and passive motion, and in both weight-bearing and non-weightbearing. See Correia v. McDonald, 28 Vet. App. 158, 169 170 (2016). b. If the Veteran has reported any periods of flare ups, but range of motion testing could not be conducted during a flare up, state the severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment. See Sharp, 29 Vet. App. at 26, 32. c. In conducting these examinations, the VA examiner must indicate whether pain could significantly limit functional ability, during flare-ups, or with repeated use over a period of time; and specifically, where feasible, describe any limitations, in terms of the degree of additional range-of-motion loss due to pain on use or flare-ups. d. If the VA examiner concludes that functional loss cannot be determined without resorting to speculation, the VA examiner must indicate this, with a clear detailed rationale. 4. Also schedule the Veteran for a new VA examination with a physician (VA examiner) to determine the etiology of her vertigo episodes. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's vertigo was incurred in service; is the result of an in-service injury, illness, disease, or event; and/or is otherwise related to her active service. b. In rendering an opinion, consider the Veteran's lay statements, and any other testimony, about onset and continuity of symptoms. c. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 5. Also, schedule the Veteran for a new VA examination with a physician (VA examiner) to determine the etiology of her right hip disability. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Obtain an MRI of the Veteran's right hip. b. For each right hip disability diagnosed, including chronic right hip pain, opine whether it is at least as likely as not (50 percent probability or greater) that the pertinent right hip disability was incurred in service; is the result of an in-service injury, illness, disease, or event; and/or is otherwise related to the Veteran's active service. c. In rendering an opinion, consider the Veteran's lay statements, and any other testimony about onset and continuity of symptoms. d. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.