Citation Nr: 21030999 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 19-26 286A DATE: May 20, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of a traumatic brain injury (TBI) (claimed as concussion with brain injury) is remanded. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for cervical spine disability is remanded. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the left knee, status post reconstruction, from September 25, 2014 through June 11, 2017, is remanded. Entitlement to a rating in excess of 30 percent for status post total left knee arthroplasty, from August 1, 2018, is remanded. Entitlement to a rating in excess of 10 percent for left knee subluxation and instability, from September 25, 2014 through June 11, 2017, is remanded. Entitlement to a rating in excess of 10 percent for status post ligament reconstruction with traumatic arthritis of the right knee, from September 25, 2014, is remanded. Entitlement to a rating in excess of 10 percent for right knee subluxation and instability, from September 25, 2014, is remanded. (The issues of entitlement to an initial compensable extraschedular rating for ulcerated septum of the nose and entitlement to an increased (compensable) rating for left ear otitis media and externa are the subjects of separate decisions by the Board) REASONS FOR REMAND The Veteran served on active duty from August 1990 to July 1996. These matters come before the Board of Veterans' Appeals (Board) from a February 2016 rating decision, in which the agency of original jurisdiction (AOJ) denied entitlement to compensation pursuant to 38 U.S.C. § 1151 for concussion with brain injury (also claimed as syncope/collapse), PTSD, and cervical annular tear (also claimed as neck condition) and denied entitlement to ratings in excess of 10 percent for traumatic arthritis of the left and right knee status post reconstruction and left and right knee subluxation with instability. In May 2019, the AOJ re-characterized the service-connected left knee disability as status post total left knee arthroplasty and assigned a temporary 100 percent disability rating, from June 12, 2017 through July 31, 2018, and a 30 percent disability rating, from August 1, 2018. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2021 hearing and a transcript of the hearing is associated with his claims file. As for characterization of the issues on appeal, as the Veteran was awarded a 100 percent rating from June 12, 2017 through July 31, 2018 for his service-connected left knee disability, the rating for this disability during that period will not be addressed by the Board. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993). Lastly, in light of the Veteran's reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claims for compensation pursuant to 38 U.S.C. § 1151 for concussion with brain injury, PTSD, and cervical annular tear as claims for compensation pursuant to 38 U.S.C. § 1151 for residuals of TBI (claimed as concussion with brain injury), psychiatric disability (to include PTSD), and cervical spine disability. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of a TBI (claimed as concussion with brain injury), psychiatric disability (to include PTSD), and cervical spine disability are remanded. The Veteran contends that compensation pursuant to 38 U.S.C. § 1151 is warranted for residuals of TBI, psychiatric disability, and cervical spine disability that were caused by a fall from a stretcher while receiving treatment in the emergency department at the VA Medical Center (VAMC) in Montgomery, Alabama in January 2013. He essentially contends that he was improperly treated with Tamiflu despite the fact that he had a pre-existing seizure disorder and that Tamiflu was contraindicated for people with seizure disorders, that his use of Tamiflu contributed to a seizure which caused him to fall, and that he fell from the stretcher because VAMC personnel did not provide him with proper assistance or ensure that his bedrail was raised and locked while he was on the stretcher. In January and February 2016, a VA psychologist and two VA physicians reviewed the Veteran's claims file and provided opinions concerning his claimed residuals of TBI, psychiatric disability, and cervical spine disability. The January 2016 TBI opinion is inadequate because although the physician noted that the Veteran's bed rails "likely should have been raised," he ultimately concluded that he was unable to provide an opinion as to whether the Veteran's claimed disabilities were caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable, and he did not provide any specific explanation or rationale for this opinion. The January 2016 psychiatric opinion is also inadequate because the psychologist only provided an explanation as to why she believed that the Veteran did not have PTSD, or any other psychiatric disability. However, the Veteran's treatment records, dated both prior to and since the January 2016 opinion, include numerous references to diagnosis of and treatment for PTSD, depression, and anxiety. Moreover, the February 2016 opinion is inadequate because the physician only concluded that the cause of the Veteran's fall and injuries was his pre-existing seizure disorder and that the medical records did not document negligence or lack of care or actions on the part of the medical staff leading to his injuries. The physician did not at all discuss the Veteran's contentions that his improper use of Tamiflu contributed to his seizure and that he was not properly supervised and secured on his stretcher prior to the fall. In light of the above inadequacies, the Board finds that the Veteran should be afforded appropriate examinations upon remand to determine the nature of any current residuals of TBI, psychiatric disability, and cervical spine disability and to obtain adequate medical opinions as to whether any such disabilities were caused or worsened by his VA medical care. Also, a June 2019 VA TBI follow-up note indicates that the Veteran was in the process of filing for Social Security Administration (SSA) disability benefits for unspecified disability. Moreover, the Veteran has suggested on several occasions, including on a September 2019 VA Form 9, that he has filed for federal disability retirement benefits. Any outstanding records pertaining to the Veteran's claims for SSA and federal disability retirement benefits may be relevant to the issues on appeal. Hence, the AOJ should attempt to obtain any such relevant records upon remand. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Jackson Vista electronic records system (dated to June 2009), the Atlanta VA Health Care System (dated to August 2010), and the Central Alabama Veterans Health Care System (dated to July 2020). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to increased ratings for traumatic arthritis of the left knee, status post reconstruction (rated 10 percent disabling from September 25, 2014 through June 11, 2017), status post total left knee arthroplasty (rated 30 percent disabling, from August 1, 2018), left knee subluxation and instability (rated 10 percent disabling from September 25, 2014 through June 11, 2017), status post ligament reconstruction with traumatic arthritis of the right knee (rated 10 percent disabling), and right knee subluxation and instability (rated 10 percent disabling) are remanded. The evidence reflects that the Veteran's service-connected right knee disability may have worsened since he was last examined by VA in June 2019 and that the June 2019 examination report is otherwise inadequate with respect to both the service-connected left and right knee disabilities. For instance, the June 2019 examination report indicates that the Veteran reported giving out of his right knee, but it is subsequently indicated that he did not have any history of recurrent subluxation or lateral instability. The Veteran later reported during the January 2021 hearing that he experienced giving way and/or locking of his right knee on a daily basis. Moreover, the physician who conducted the June 2019 examination indicated that pain, fatigue, weakness, and lack of endurance significantly limited functional ability of both knees with repeated use over time and during flare ups. However, she was unable to describe such functional loss in terms of range of motion because the amount of functional loss depended upon the Veteran's amount of physical activity and the severity of his flare ups, such factors were impossible to observe, his medical records did not sufficiently identify previous ranges of motion following repetitive motion and during flare ups, and general medical knowledge was insufficient to reasonably estimate range of motion for each plane of motion because there was great variability between claimants who have the same conditions. In light of the above information and the fact that the issues of entitlement to increased ratings for the service-connected left and right knee disabilities must otherwise be remanded to obtain outstanding SSA and federal disability retirement records, the Veteran should be provided an opportunity to report for a new VA examination to ascertain the current severity and manifestations of his service-connected left and right knee disabilities. Also, all outstanding VA treatment records, SSA disability records, and federal disability retirement records should be secured upon remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the Jackson Vista electronic records system for the period since June 2009; the Atlanta VA Health Care System for the period since August 2010; the Central Alabama Veterans Health Care System for the period since July 2020; and all such relevant records from any other sufficiently identified VA facility. 2. Contact the SSA and request a copy of that agency's decision(s) for disability and/or supplemental security income benefits and all relevant records pertaining to such claim(s). Document all requests for information as well as all responses in the claims file. 3. Contact the United States Office of Personnel Management and request all records relied upon in making any disability retirement determination(s). Document all requests for information as well as all responses in the claims file. 4. After all efforts have been exhausted to obtain and associate with the claims file any SSA records, federal disability retirement records, and additional treatment records, schedule the Veteran for a VA TBI examination with an appropriate clinician to determine the nature of any current residuals of TBI and to obtain an opinion as to whether any such disability was caused or worsened by VA treatment. The examiner must opine whether any residual of TBI experienced by the Veteran's since approximately April 2015 (including, but not limited to, headaches and any disability manifested by memory loss) at least as likely as not was caused or worsened (in whole or in part) by his fall from a stretcher at the VAMC in Montgomery, Alabama in January 2013. If any current residual of TBI was as likely as not caused or worsened by the Veteran's fall from a stretcher in January 2013, the examiner must also opine whether the disability at least as likely as not was proximately caused by (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, OR (b) an event not reasonably foreseeable. The examiner must provide reasons for each opinion given. In this regard, the examiner must address the Veteran's contentions that he was improperly treated with Tamiflu despite the fact that he had a pre-existing seizure disorder and that Tamiflu was contraindicated for people with seizure disorders, that his use of Tamiflu contributed to a seizure which caused him to fall, and that he fell from the stretcher because VAMC personnel did not provide him with proper assistance or ensure that his bedrail was raised and locked while he was on the stretcher. 5. After all efforts have been exhausted to obtain and associate with the claims file any SSA records, federal disability retirement records, and additional treatment records, schedule the Veteran for a VA psychiatric examination with an appropriate clinician to determine the nature of any current psychiatric disability (to include PTSD) and to obtain an opinion as to whether any such disability was caused or worsened by VA treatment. The examiner must opine whether any psychiatric disability experienced by the Veteran's since approximately April 2015 (including, but not limited to, PTSD, depression, and anxiety) at least as likely as not was caused or worsened (in whole or in part) by his fall from a stretcher at the VAMC in Montgomery, Alabama in January 2013. If any current psychiatric disability was as likely as not caused or worsened by the Veteran's fall from a stretcher in January 2013, the examiner must also opine whether the disability at least as likely as not was proximately caused by (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, OR (b) an event not reasonably foreseeable. The examiner must provide reasons for each opinion given. In this regard, the examiner must address the Veteran's contentions that he was improperly treated with Tamiflu despite the fact that he had a pre-existing seizure disorder and that Tamiflu was contraindicated for people with seizure disorders, that his use of Tamiflu contributed to a seizure which caused him to fall, and that he fell from the stretcher because VAMC personnel did not provide him with proper assistance or ensure that his bedrail was raised and locked while he was on the stretcher. 6. After all efforts have been exhausted to obtain and associate with the claims file any SSA records, federal disability retirement records, and additional treatment records, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature of any current cervical spine disability and to obtain an opinion as to whether any such disability was caused or worsened by VA treatment. The examiner must opine whether any cervical spine disability experienced by the Veteran's since approximately April 2015 at least as likely as not was caused or worsened (in whole or in part) by his fall from a stretcher at the VAMC in Montgomery, Alabama in January 2013. If any current cervical spine disability was as likely as not caused or worsened by the Veteran's fall from a stretcher in January 2013, the examiner must also opine whether the disability at least as likely as not was proximately caused by (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, OR (b) an event not reasonably foreseeable. The examiner must provide reasons for each opinion given. In this regard, the examiner must address the Veteran's contentions that he was improperly treated with Tamiflu despite the fact that he had a pre-existing seizure disorder and that Tamiflu was contraindicated for people with seizure disorders, that his use of Tamiflu contributed to a seizure which caused him to fall, and that he fell from the stretcher because VAMC personnel did not provide him with proper assistance or ensure that his bedrail was raised and locked while he was on the stretcher. 7. After all efforts have been exhausted to obtain and associate with the claims file any SSA records, federal disability retirement records, and treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left and right knee. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. (CONTINUED ON NEXT PAGE) The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.