Citation Nr: 21040789 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-61 068 DATE: July 7, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for a left knee disability is reopened; to this extent only, the claim is granted. Entitlement to a temporary total rating based on treatment for service-connected posttraumatic stress disorder (PTSD) requiring hospitalization, pursuant to 38 C.F.R. § 4.29, and/or convalescence, pursuant to 38 C.F.R. § 4.30, is dismissed. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to service-connected right foot disability, is remanded. Entitlement to a rating in excess of 10 percent for a lumbar strain is remanded. Entitlement to a rating in excess of 20 percent for partial complex epilepsy is remanded. Entitlement to a rating in excess of 30 percent for migraine headaches is remanded. FINDINGS OF FACT 1. The July 2004 rating decision that denied entitlement to service connection for a left knee disability was not timely appealed and became final. 2. Evidence received since the July 2004 rating decision raises a reasonable possibility of substantiating the underlying claim for service connection for a left knee disability. 3. The Veteran is in receipt of a 100 percent rating for service-connected PTSD throughout the period on appeal, which renders moot the appeal for a temporary total rating based on treatment for PTSD requiring hospitalization and/or convalescence. CONCLUSIONS OF LAW 1. The July 2004 rating decision that denied entitlement to service connection for a left knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 19.52. 2. Evidence received since the July 2004 rating decision is new and material and the claim for entitlement to service connection for a left knee disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The claim for entitlement to a temporary total rating based on treatment for service-connected PTSD requiring hospitalization, pursuant to 38 C.F.R. § 4.29, and/or convalescence, pursuant to 38 C.F.R. § 4.30, is dismissed as moot. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 2000 to December 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual tele-hearing. A transcript of the hearing is of record. The Veteran testified at the Board hearing that she is unable to work due to her service-connected disabilities, which typically raises the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran is already in receipt of a 100 percent disability rating and special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) from August 22, 2014. Therefore, the issue of entitlement to a TDIU is moot and the Board need not consider it herein. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor her representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). New and Material Evidence Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 19.52, 20.201, 20.202, 20.203. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. See id. at 117-18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a left knee disability The last prior final denial for the claim for service connection for a left knee disability was a July 2004 rating decision. It is final because the Veteran did not submit a notice of disagreement within one year of notification of the determination. 38 U.S.C. § 7105; 38 C.F.R. § 19.52. Therefore, the Board looks to the evidence submitted since July 2004 for new and material evidence. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge, 155 F.3d at 1356. In the July 2004 rating decision, the RO denied the Veteran's claim for a left knee disability (claimed as "left knee joint popping") because she was not shown by the evidence of record to have a currently-diagnosed left knee condition. Evidence received since July 2004 includes a July 2017 VA examination report, which shows that the Veteran has been diagnosed with a left knee strain. As this evidence was not of record at the time of the July 2004 denial and it relates to an unestablished fact necessary to substantiate the Veteran's claim, the Board finds the evidence to be both new and material. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117. Accordingly, the claim for entitlement to service connection for a left knee disability is reopened. To this extent only, the claim is granted. Temporary Total Disability Rating Under 38 C.F.R. § 4.29, a temporary total disability rating (100 percent) will be assigned when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Under 38 C.F.R. § 4.30, a temporary total disability rating (100 percent) will be assigned when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 2. Entitlement to a temporary total rating based on treatment for service-connected PTSD requiring hospitalization, pursuant to 38 C.F.R. § 4.29, and/or convalescence, pursuant to 38 C.F.R. § 4.30 The Veteran has claimed entitlement to a temporary total rating based on treatment for service-connected disability under both 38 C.F.R. § 4.29 (hospitalization) and 38 C.F.R. § 4.30 (convalescence). Prior to her Board hearing, the Veteran had not put forth any specific contentions as to why she believes she is entitled to one or both of these benefits, nor had she identified which service-connected disability or disabilities applied to these claims. However, at the September 2020 Board hearing, the Veteran clarified that her claims were based on inpatient treatment she had received for her service-connected PTSD. Review of the Veteran's VA treatment records show that she was admitted to the acute care inpatient psychiatry unit at her local VA Medical Center for treatment for an exacerbation of PTSD symptoms in November 2015. She was discharged after three days. The Veteran then entered a day hospital/partial hospitalization program for PTSD, which lasted 30 days. She completed the program in December 2015. There is no other evidence in the Veteran's treatment records that she has been hospitalized at any other time for treatment related to her service-connected PTSD. Moreover, there is no evidence or argument that the Veteran has undergone treatment for PTSD (or any other service-connected disability) which resulted in surgery or immobilization of a cast requiring a period of convalescence at any time. The Board notes that the Veteran has been in receipt of a 100 percent disability rating for her service-connected PTSD since August 22, 2014, which covers the period during which she received inpatient treatment for PTSD in November 2015 and December 2015. Thus, because the Veteran is already in receipt of the maximum benefit sought on appeal (a total disability rating), the Board finds that the issues of entitlement to a temporary total rating based on treatment for service-connected PTSD requiring hospitalization, pursuant to 38 C.F.R. § 4.29, and/or convalescence, pursuant to 38 C.F.R. § 4.30, are moot. Accordingly, the Veteran's appeal as to these matters are dismissed. 38 U.S.C. § 7105; Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy when an appeal has become moot). REASONS FOR REMAND Unfortunately, the claims remaining on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure there is a complete record upon which to decide these issues so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right foot disability, is remanded. The Veteran seeks entitlement to service connection for a left knee disability, which she contends was incurred in or caused by military service. At the September 2020 Board hearing, the Veteran testified that she injured her left knee during service when she was thrown off the back of a tactical vehicle. Service treatment records show that the Veteran fractured her right foot in this same incident, which required surgery; she is service-connected for this right foot disability. At her November 2003 separation examination, the Veteran reported she had injured her left knee during service but had not sought treatment. She also reported at that time that she had been told by the orthopedic clinic that her left knee "knocks" secondary to her right foot operation and an antalgic gait. One month after discharge from active duty, in a January 2004 VA treatment record, the Veteran was noted to have a history of left knee internal derangement, though it does not appear the Veteran sought treatment for left knee complaints at that time. In an August 2016 treatment record, the Veteran was noted to have degenerative joint disease in her left knee. On July 3, 2017, the Veteran underwent a VA knee conditions examination. However, on examination, the VA examiner only assessed the Veteran's right knee. No diagnosis was provided for the left knee. Nonetheless, the examiner provided a positive nexus opinion for the left knee, finding it is at least as likely as not a left knee disability was incurred in or caused by service. The rationale provided for this opinion was that the Veteran complained of left knee pain and popping during service and gradually the pain got worse over the years. Because the Veteran's left knee was not assessed at the above VA examination, the Veteran was scheduled for another VA knee conditions examination on July 12, 2017. On examination, the VA examiner diagnosed a left knee strain. However, the examiner provided a negative nexus opinion, finding it is less likely than not that the disability was incurred in or caused by service. The rationale provided stated only there is no medical evidence (presumably, of an in-service injury) and no continuity of care. The Board does not find either VA opinion obtained in July 2017 to be adequate to fairly resolve the Veteran's claim. Although favorable to the Veteran, the first VA opinion cannot be used as basis to grant service connection because the examiner did not assess the Veteran's left knee on examination or provide a current diagnosis for any left knee condition. The second VA opinion does not address pertinent service treatment records, namely, the November 2003 separation examination, showing that the Veteran reported a left knee injury during service. Once VA undertakes the effort to provide an examination or opinion when developing a service connection claim, it must provide one that is adequate for the purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, remand is warranted to obtain a new VA examination and medical opinion before the Board can render an informed decision on the Veteran's claim. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Additionally, the Board notes that there is evidence that the Veteran's left knee disability is caused or aggravated by her service-connected right foot disability. See November 2003 separation examination. When a theory of entitlement is raised by the record, the Board must consider it. Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). Therefore, the Board has recharacterized the Veteran's claim accordingly and, on remand, the requested medical opinion must address the issue of secondary service connection. 2. Entitlement to a rating in excess of 10 percent for a lumbar strain is remanded. 3. Entitlement to a rating in excess of 20 percent for partial complex epilepsy is remanded. 4. Entitlement to a rating in excess of 30 percent for migraine headaches is remanded. The Veteran seeks increased ratings for her service-connected lumbar strain, partial complex epilepsy, and migraine headaches. The Board notes that these disabilities were last evaluated on VA examination in July 2017. However, at the September 2020 Board hearing, the Veteran endorsed more severe and frequent symptoms of disability than those shown on examination in July 2017. With regard to her epilepsy and migraine headaches, the Veteran stated that because her symptoms were increasing in severity, her doctor changed her medication and increased her dosage, which had helped to alleviate the severity of her symptoms. The Board notes that a new examination is appropriate when there is an assertion of an increase in severity of symptoms since the last examination. The Board also acknowledges the considerable length of time since the Veteran's disabilities were last evaluated on examination. Therefore, remand is warranted to afford the Veteran new VA examinations to assess the current severity of her lumbar strain, partial complex epilepsy, and migraine headaches. See 38 C.F.R. § 3.159; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). The Veteran also testified at the Board hearing that she underwent an MRI and x-ray of her lumbar spine the week before her hearing, presumably in August 2020. However, the Board notes that these imaging results are not of record. In fact, the most recent VA treatment records uploaded to the Veteran's claims file are from June 2017. On remand, the Veteran's outstanding VA treatment records must be obtained and associated with the claims file. Accordingly, the matters are REMANDED for the following actions: 1. Obtain all outstanding VA treatment records, to specifically include any imaging of the Veteran's lumbar spine performed in August 2020. 2. Schedule the Veteran for a VA examination with a VA physician (M.D.) of appropriate expertise to assess the nature and etiology of her left knee disability. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. Any diagnostic testing and studies deemed necessary, to include x-rays, should be accomplished and all findings should be reported in detail. A complete history of symptoms must be elicited from the Veteran. Thereafter, the examiner must provide a fully-articulated medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability was incurred in or caused by an in-service injury, illness, or event? In providing a response to question (a), the examiner must specifically discuss the Veteran's September 2020 Board hearing testimony that she injured her left knee when she fell off a tactical vehicle during service; the November 2003 separation examination in which the Veteran reported a left knee injury; and the January 2004 VA treatment record which noted a history of left knee internal derangement. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is caused by her service-connected right foot disability? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is aggravated by (increased in severity beyond its natural progression) by her service-connected right foot disability? In providing SEPARATE responses to questions (b) and (c), the examiner must discuss the November 2003 separation examination, which contains a report by the Veteran that she had been told by the orthopedic clinic that her left knee "knocks" secondary to her right foot operation and an antalgic gait. The term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the examiner's report reconcile the evidence of record, to include the Veteran's lay statements and hearing testimony, service treatment records, post-service medical records, prior VA examinations, and any other pertinent lay evidence of record. The examiner is advised that the Veteran is competent to report her medical history, including when her symptoms began, and such reports must be acknowledged and considered in formulating any opinion. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. The examiner must provide a complete rationale for any opinion expressed, citing to the examiner's clinical experience, medical expertise, and established medical principles, as necessary. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. Schedule the Veteran for VA examinations with VA physician(s) (M.D.) of appropriate expertise to fully assess the current severity of the following service-connected disabilities: lumbar strain; partial complex epilepsy, and migraine headaches. The claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. A complete history of symptoms must be elicited from the Veteran. Thereafter, the respective examiner is asked to provide the following: Lumbar Strain (a) Report the extent of the Veteran's lumbar spine symptoms in accordance with VA rating criteria using the appropriate disability benefits questionnaire (DBQ). (b) Conduct range of motion testing of the lumbar spine, specifically noting the motion in degrees on 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, s/he should clearly explain why that is so. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner must indicate the point at which pain begins. (d) State whether the examination is taking place during a period of flare-up. If not, the examiner must ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and other evidence of record, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. If the examiner is unable to do so, s/he must indicate why. It should be noted that VA's Clinicians Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flare-ups from veterans. (e) Thoroughly address all neurological abnormalities reported by the Veteran or found on examination, including, if found, lower extremity radiculopathy. If an EMG or other study is required to objectively confirm the Veteran's reported neurological manifestations, then such testing should be performed. If any neurological abnormality is identified and confirmed, the examiner must opine whether any such abnormality is at least as likely as not related to the Veteran's lumbar spine disability. If the abnormality is deemed to be associated with the Veteran's lumbar spine disability, then the examiner must complete the DBQ that corresponds to that disability. A full and complete explanatory rationale must be provided for any opinions offered. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must indicate whether this inability is due to a lack of knowledge among the medical community or based on a lack of procurable information. Partial Complex Epilepsy (a) Report the extent and severity of the signs and symptoms of the Veteran's epilepsy in accordance with VA rating criteria. In this regard, the examiner must complete the corresponding VA DBQ. All studies, tests, or evaluations deemed necessary by the examiner to complete the above should be accomplished. (b) To the extent possible, the examiner should identify any functional effects of the Veteran's epilepsy on her occupational functioning, daily life, and ordinary activities. The examiner is notified that when assessing the Veteran's symptoms of epilepsy, the examiner may not consider the ameliorative effects of medication. Migraine Headaches (a) Report the extent and severity of the signs and symptoms of the Veteran's migraine headaches in accordance with VA rating criteria. In this regard, the examiner must complete the corresponding VA DBQ. All studies, tests, or evaluations deemed necessary by the examiner to complete the above should be accomplished. (b) To the extent possible, the examiner should identify any functional effects of the Veteran's migraine headaches on her occupational functioning, daily life, and ordinary activities. The examiner is notified that when assessing the Veteran's symptoms of migraine headaches, the examiner may not consider the ameliorative effects of medication. With regard to the above examinations, the examiner is reminded that the Veteran's lay statements regarding her symptomology must be recorded and taken into consideration. The respective examination reports must include a complete rationale for any opinions provided. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.