Citation Nr: 21039773 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 20-22 253 DATE: July 1, 2021 ORDER The appeal to reopen a claim for service connection for a left knee/left tibia disability is granted. REMANDED Service connection for a left knee/left tibia disability is remanded. An increased rating greater than 30 percent for acromioclavicular joint arthritis, right shoulder is remanded. The appeal for an increased rating for left shoulder surgical scars is remanded. Service connection for osteoarthritis and trochanteric pain syndrome, right hip is remanded. The appeal for a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT In an April 1992 rating decision, the Veteran was denied service connection for a left knee/left tibia disability on the basis that evidence did not reflect his disability was related to service. The Veteran was notified of that decision in correspondence issued the same month. He did not appeal the decision, nor was new and material evidence received within one year. Therefore, the decision is final. New and material evidence has been received in the form of March 2021 Board hearing testimony and medical record. CONCLUSION OF LAW New and material evidence having been received after the April 1992 rating decision became final, the appeal to reopen the claim for service connection for a left knee/left tibia disability is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 19.52. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1983 to December 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a March 2021 Board hearing before the undersigned; a transcript of which has been associated with the record. The Veteran has pending before VA, a claim for an increased rating for residuals of left shoulder injury. That claim is under the Appeals Modernization Act (AMA) framework under a separate appeal stream and will be addressed in a separate decision. The record reflects that the Veteran's service-connected disabilities may have prevented him from working during the appeal period. See March 2021 Board hearing and medical treatment records. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue. [NOTE TO VETERAN: The issues of entitlement to compensation under 38 U.S.C. § 1151 for a reportedly "botched" surgery (2019 hernia repair at VA) and entitlement to a temporary total evaluation of 100 percent for surgery necessitating convalescence were denied in an April 2021 rating decision and a notification letter was sent to you the same month. Those issues are not currently on appeal and you have one year from the April 9, 2021 notification letter to file a timely appeal in the AMA system if you wish to do so. You should consult the letter or your representative with any questions.] The appeal to reopen a claim for service connection for left knee/left tibia is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal to reopen a claim for service connection for left knee/left tibia is granted. REASONS FOR REMAND 1. Service connection for left knee/left tibia is remanded. The Veteran has not been afforded a VA examination for his left knee/left tibia condition. Evidence within the record shows a current diagnosis, an in-service event or injury, some indication that the Veteran's symptoms of knee pain have persisted since service. However, there is insufficient evidence to render a decision; therefore, a remand is required in order to obtain a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA must provide a medical examination when there is insufficient medical evidence to decide the claim but there is evidence of a current disability, an in-service injury, and an "indication" of a potential causal link (nexus) to service). 2. An increased rating greater than 30 percent for acromioclavicular joint arthritis, right shoulder is remanded. These issues were last adjudicated in an April 2020 statement of the case (SOC). New evidence, specifically VA treatment records and an April 2021 VA examination, have since been associated with the file. A waiver for this evidence has not been submitted by the Veteran or his representative and a presumed waiver pursuant to 38 U.S.C. § 7105(e)(1) does not apply because the evidence was generated by VA, rather than submitted by the Veteran. As a result, remand is necessary so the AOJ can issue a supplemental statement of the case (SSOC) considering all the relevant evidence of record associated with the file. See 38 C.F.R. § 20.1304(c). 3. The appeal for an increased rating for left shoulder surgical scars is remanded. Despite numerous VA examinations for the Veteran's left shoulder condition, he has not been afforded a scar specific VA examination. The prior VA examinations for the Veteran left shoulder do not adequately evaluate his left shoulder scar disability. Further, the Veteran has provided testimony that his left shoulder scar is painful and the prior VA examinations have indicated otherwise. Therefore, a remand is required for a left shoulder scar-specific VA examination. 4. Service connection for osteoarthritis and trochanteric pain syndrome of the right hip is remanded. The Veteran attended a November 2018 VA examination for his hip condition. The Board finds this examination inadequate because the examiner's reasoning is that they could not provide a causal link opinion without resorting to mere speculation but did not provide an explanation for why no opinion could be provided or why it would be speculative. Therefore, a remand is required in order to obtain a new VA examination. 5. The appeal for a TDIU rating is remanded. The matter of a TDIU rating is inextricably intertwined with the Veteran's other remanded issues; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. Please note that this Veteran's case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. The AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left knee/left tibia disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left knee/left tibia disabilities present during the appeal period (from October 2018). (b.) For each left knee/left tibia disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner's attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): (c.) A January 2019 VA treatment record noted a diagnosis of left knee degenerative joint disease. (d.) The Veteran's March 2021 Board hearing testimony. (e.) March 2021 evidence submitted by the Veteran's representative. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. The AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected left shoulder surgical scars, including specifically a scars/skin DBQ. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran's disability. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. (Including specifically, the Veteran's reports of pain during his March 2021 Board hearing) A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. The AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any osteoarthritis and trochanteric pain syndrome, right hip disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all osteoarthritis and trochanteric pain syndrome, right hip disabilities present during the appeal period (from October 2018). (b.) For each osteoarthritis and trochanteric pain syndrome, right hip disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner's attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): (c.) The Veteran's March 2021 Board hearing testimony. (d.) March 2021 evidence submitted by the Veteran's representative. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. The examiner is also reminded that, by law, pain or other symptoms, with functional impairment can constitute a disability for VA compensation purposes. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). If the examiner determines that a decision cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks as to why such is the case. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. 5. The AOJ should send the Veteran and his representative an SOCC that addresses all new evidence of record since the April 2020 SOC. Most notably, an April 2021 VA examination which resulted in a higher evaluation for the Veteran's right shoulder condition. The SSOC should also address the issue of TDIU and all remaining issues on appeal in the Legacy (pre-AMA) appeal system. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.