Citation Nr: 21040481 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-13 270 DATE: July 3, 2021 REMANDED Entitlement to service connection for a back disability, to include as secondary to service-connected chronic right knee strain, is remanded. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to a back disability, is remanded. Entitlement to a disability rating in excess of 10 percent for chronic right knee strain is remanded. Entitlement to a compensable disability rating for hallux valgus with hammertoes of the right foot is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1978 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in March 2019 for further development. The Veteran testified at a videoconference hearing before the undersigned in August 2018. A transcript is of record. 1. Entitlement to service connection for a back disability, to include as secondary to service-connected chronic right knee strain, is remanded. 2. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to a back disability, is remanded. 3. Entitlement to a disability rating in excess of 10 percent for chronic right knee strain is remanded. 4. Entitlement to a compensable disability rating for hallux valgus with hammertoes of the right foot is remanded. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. The February 2020 VA examiner referred to a 2010 functional capacity evaluation and a February 25, 2010 VA treatment record indicated that the Veteran wanted a functional capacity evaluation done. However, this evaluation is not of record. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Entitlement to service connection for a back disability and radiculopathy of the right lower extremity The Board finds that the February 2020 VA examination opinion addressing the etiology of the Veteran's back disability is incomplete. Secondary service connection is a two-part issue that involves an analysis of both causation and aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. As the VA examination did not address whether the Veteran's service-connected disabilities aggravated his back disability, a supplemental VA opinion is required that address aggravation. El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (when proximate causation and aggravation are at issue, the Board must ensure that the medical opinion addresses each). Additionally, the Board finds that the February 2020 VA examination opinion that the Veteran's back disability was less likely than not due to his service-conneted disabitilies is inadequate as it was partly based on a conflicting finding with other evidence in the file that at the time of the examination the Veteran did not have an antalgic gait. The Board notes that VA treatment records repeatedly show that the Veteran had an antalgic gait due, in part, to his feet disability. As such, a remand is warranted for a new VA examination, to include reconciling such discrepancy. Entitlement to an increased rating for chronic right knee strain In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) addressed the adequacy of a VA examiner's findings concerning additional functional loss during flare-ups of a musculoskeletal disability pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). 29 Vet. App. 26 (2017). The Court held that VA examiners must estimate the functional loss that would occur during flare-ups. Specifically, examiners must name the precipitating and alleviating factors for the flare and estimate "per the veteran" the extent to which flares affect functional impairment. The Veteran reported at the February 2020 examination that he experienced flare-ups of his right knee disability; however, the VA examiner did not adequately estimate the functional loss that would occur during flare-ups. As such, a new VA examination is warranted. TDIU The Board notes that the Veteran has not been sent notice for his TDIU claim and has not completed a TDIU form. Therefore, on remand, the RO should comply with the duties to notify and assist in connection with the Veteran's TDIU claim. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA treatment records, to include the functional capacity evaluation referenced in the February 25, 2010 VA treatment record and February 2020 VA examination. 2. Then, schedule the Veteran for a VA examination to address the severity of his service-connected chronic right knee strain. Provide the claims file, including a copy of this REMAND, to the examiner for review. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of the Veteran's knee symptoms, and the effect of pain on range of motion. 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 his knee symptoms and/or after repeated use over time. 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. A full and complete explanatory rationale must be provided for any opinion offered. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. 3. Then, obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's back disability, to include any neurological manifestations, such as radiculopathy of the right lower extremity. Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should respond to the following: (a) Is it at least as likely as not (approximately 50 percent probability or greater) that the Veteran's back disability, to include any neurological manifestation (i.e., radiculopathy of the right lower extremity) was proximately due to, or the result of, his service-connected disabilities? (b) Is it at least as likely as not (approximately 50 percent probability or greater) that the Veteran's back disability, to include any neurological manifestation (i.e., radiculopathy of the right lower extremity) was aggravated by his service-connected disabilities? A complete rationale for all opinions must be provided. The examiner is advised that the VA treatment records indicate that the Veteran has an antalgic gait. (Continued on the next page) 4. Provide the Veteran appropriate notice in connection with the claim for TDIU. The Veteran should be requested to complete and submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940), and the RO should undertake all further appropriate actions for development of this claim. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.