Citation Nr: 21030834 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-11 431 DATE: May 19, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. A May 2017 rating decision denied service connection for a neck disability. The Veteran filed a timely notice of disagreement (VA Form 21-0958) later that month. This notice of disagreement has not been acknowledged by the Agency of Original Jurisdiction (AOJ). There is no indication the Veteran has withdrawn his appeal; therefore, the Board must remand the issue of service connection for a neck disability to the AOJ for the issuance of statement of the case in accordance with the holding in Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to service connection for a back disability is remanded. The issue of service connection for a back disability was previously before the Board in March 2019, when it was remanded so the Veteran could be scheduled for an examination to obtain a nexus opinion. Unfortunately, the August 2019 opinion the Agency of Original Jurisdiction (AOJ) obtained is inadequate to make an informed decision on the Veteran's claim. First, the examiner's rationale regarding a nexus in the context of direct service connection is limited solely to a lack of documented treatment, which cannot serve as the sole basis for a negative nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (explaining a lack of documented treatment in service cannot be the sole basis for a negative nexus opinion). There is no indication the examiner considered the Veteran's lay reports of continuous back pain since his separation from service. Second, the Board is unable to discern any probative value from the examiner's rationale regarding both causation and aggravation in the context of secondary service connection in that it appears the examiner's only basis for his negative conclusions is the lapse in time between the Veteran's in-service right knee injury and the diagnosis of degenerative arthritis of the lumbar spine without any clear explanation of the biomechanics or medical principles involved. In sum, the Board finds a new opinion is necessary to ensure compliance with VA's duty to assist. 3. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. In March 2019, the Board remanded the Veteran's appeal of the initial rating assigned for his service-connected right knee disability due to his reports of increased severity; however, the Board also notes his previous January 2013 examination report is inadequate for rating purposes because it does not include all range-of-motion testing required by VA regulation or adequately address additional functional impairment during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017), Correia v. McDonald, 28 Vet. App. 158 (2016). The AOJ scheduled the Veteran for a new examination in August 2019. The August 2019 VA examiner reported the Veteran does not experience flare-ups, but his previous examiner in January 2013 did note flare-ups even though he failed to provide an estimate of additional range-of-motion loss resulting from such flare-ups. As a result, the Board finds a new examination is necessary to address the inconsistency in the record regarding flare-ups and to obtain a retrospective estimate of additional range-of-motion loss during flare-ups to the extent possible, if necessary. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008). 4. Entitlement to TDIU is remanded. TDIU is an element of the Veteran's appeal of the initial rating assigned for his service-connected right knee disability because unemployability has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Specifically, records associated with the claims file in May 2012 indicate the Veteran was granted disability benefits by the Social Security Administration (SSA) beginning in June 2010. While the SSA notice does not list the specific disabilities upon which the Veteran's award was based, it nevertheless raises the issue of unemployability in the Veteran's case and also requires further development, to include the request of the Veteran's SSA records. See Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Further, TDIU is inextricably intertwined with the other issues being remanded for additional development because the Veteran does not currently meet the schedular percentage requirements for TDIU outlined in 38 C.F.R. § 4.16(a). See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The AOJ should also develop and adjudicate this issue in the first instance to ensure the Veteran is afforded the requisite due process. See 38 U.S.C. § 7104(a); see also Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The matters are REMANDED for the following action: 1. Issue a statement of the case regarding the Veteran's appeal of the denial of service connection for a neck disability. 2. Schedule the Veteran for a new examination regarding his service connection claim for a back disability, preferably with an examiner other than his October 2019 examiner. The selected examiner must provide an opinion addressing whether the claimed back disability is at least as likely as not (50 percent probability or greater) the result of an in-service disease or injury; or proximately due to, or aggravated by, the Veteran's service-connected right knee disability. The secondary service connection opinion must address causation and aggravation separately to be deemed adequate. In this context, the examiner must address whether the Veteran has altered gait or other changes caused by the service-connected knee disability that have either caused or aggravated the current back disability. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. The examiner must be further advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for each conclusion contained therein. 3. Schedule the Veteran for a new examination to assess the severity of his service-connected right knee disability. The selected examiner should conduct all indicated tests and studies, to include range of motion testing. The knees should be tested in both active and passive motion and in weight-bearing and nonweight-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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. 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. If it is determined the Veteran does not currently experience flare-ups, the examiner must address the notations of flare-ups throughout the appeal period and explain whether these notations, to include those by the Veteran's January 2013 VA examiner, were in error or whether the Veteran's flare-ups have since resolved. 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. This estimate must be provided even if the previously noted flare-ups have been deemed to have since resolved, albeit from a retrospective perspective to the extent possible. 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). 4. Develop and adjudicate the issue of entitlement to TDIU as an element of the Veteran's appeal of the initial rating assigned for his service-connected right knee disability, to include extra-schedular consideration under 38 C.F.R. § 4.16(b) for any period in which it is determined the Veteran does not meet the schedular percentage requirement for TDIU outlined in 38 C.F.R. § 4.16(a). M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.