Citation Nr: 21030934 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-36 161 DATE: May 20, 2021 REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for low back disability is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for heart disease is remanded. Entitlement to service connection for gastroesophageal reflux disease is remanded. Entitlement to service connection for allergic dermatitis is remanded. Entitlement to an increased evaluation in excess of 30 percent for headaches, tension type currently evaluated as 30 percent disabling is remanded. Entitlement to an increased disability rating in excess of 20 percent for degenerative joint disease, right knee with surgical scar is remanded. Entitlement to an increased disability rating in excess of 20 percent for degenerative joint disease, left knee is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from February 1976 to August 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal of February 2013, January 2014, and October 2016 rating decisions of a Department of Veterans Affairs (VA) regional office (agency of original jurisdiction or AOJ), in Atlanta, Georgia. In September 2019, the Veteran testified before the undersigned at a Board hearing held via videoconference. The transcript has been associated with the record. In the rating decision, the RO denied increased ratings for the Veteran's bilateral knee and headache disabilities, as well as entitlement to TDIU. In his November 2014 Notice of Disagreement, the Veteran disagreed with the RO denials of the increased rating claims but did not disagree with the denial of TDIU. However, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to a service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. During the September 2019 hearing, the Veteran testified that his knee and migraine disabilities affected his employment. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of the pending increased rating claims. The Board has listed the TDIU issue as a separate claim on the title page for procedural purposes. 1. Entitlement to service connection for diabetes mellitus is remanded. 2. Entitlement to service connection for low back disability is remanded. 3. Entitlement to service connection for erectile dysfunction is remanded. 4. Entitlement to service connection for heart disease is remanded. 5. Entitlement to service connection for gastroesophageal reflux disease is remanded. 6. Entitlement to service connection for allergic dermatitis is remanded. Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran's September 2019 Board testimony and a September 2019 record indicates that there may be outstanding and relevant Social Security Administration records. A remand is required to allow VA to request these records. 7. Entitlement to an increased evaluation in excess of 30 percent for headaches, tension type currently evaluated as 30 percent disabling is remanded. The Veteran was afforded a VA examination in December 2013 to assess the severity of his migraines. Since that time, the Veteran's statements suggest a worsening in severity of his migraine headaches. Specifically, in a recent statement, the Veteran reported having between 25 and 30 headaches per month, which required him to lay down in the dark for a few hours. See Board Hearing Transcript, dated September 2019. As such, the Board finds that a contemporaneous VA examination is required to assess the severity of the Veteran's migraines. 8. Entitlement to an increased disability rating in excess of 20 percent for degenerative joint disease, right knee with surgical scar is remanded. 9. Entitlement to an increased disability rating in excess of 20 percent for degenerative joint disease, left knee is remanded. In this case, the Board finds that an additional VA examination is required to accurately ascertain the current severity of the Veteran's bilateral knee conditions. While his last knee examination was in January 2014, the Board finds that is in inadequate, and that a more contemporaneous examination, with medical findings responsive to the applicable criteria for rating the disability under consideration, is needed. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). 10. Entitlement to TDIU is remanded. Finally, because a decision on the remanded issues above could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Associate with the claims folder any updated private and VA treatment records. 2. Obtain the Veteran's federal records from Social Security Administration, to include copies of all decisions and all medical records relied upon in conjunction with any Veteran's claim for Social Security Administration disability benefits. All efforts to obtain the Social Security records should be fully documented, and a negative response must be provided if any decisions and/or records are not available. 3. Send the Veteran VCAA notice informing him of the factors relevant to establishing a TDIU claim. Enclose with the letter, a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran should be invited to submit any records pertaining to sick days taken due to service-connected disabilities and any workplace accommodations which have been made for service-connected disabilities. 4. Schedule the Veteran for a VA examination to assess the current severity of his migraines. The claims file should be made available to and reviewed by the examiner. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disorders. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), for each disorder the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: Active motion; Passive motion; 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. All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings. 6. After completing any additional notification or development deemed necessary, the Veteran's claims should be readjudicated. If the claims remain denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor 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.