Citation Nr: 21040824 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-44 272 DATE: July 7, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a disability manifesting in abdominal pain is remanded. Entitlement to a compensable evaluation prior to August 14, 2020 and in excess of 10 percent thereafter for left ankle sprain is remanded. Entitlement to an increased rating in excess of 10 percent for chronic prostatitis with hematuria 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 August 1977 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and October 2012 rating decisions by the Department of Veterans Affairs (VA). This case was remanded in February 2020 for further development. In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Since the Board's remand, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's left ankle sprain to 10 percent, effective August 14, 2020. The issue has been recharacterized accordingly. In March 2018, the Veteran opted-in his appeal to VA's test program RAMP, the Rapid Appeals Modernization Program, which would have ended his current legacy appeal and the issues would be adjudicated under the legal framework provided by the Appeals Modernization Act (AMA). VA sought clarification from the Veteran as to whether he would still like to participate in RAMP. See March 2021 correspondence. Though the Veteran replied to the correspondence, he did not indicate that he wished to opt-in to RAMP. See April 2021 correspondence. As a result, the appeal remains in the legacy framework and the Board will continue with adjudication. The record reflects that the Veteran's service-connected left ankle disability may have impacted his ability to work during the appeal period. See August 2014 Social Security Administration disability determination (discussing the Veteran's left ankle). 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. The issue of entitlement to service connection for a right hip disability pursuant to 38 U.S.C. § 1151 was claimed in a May 2018 VA Form 21-526EZ statement and is referred to the AOJ for adjudication. See Anderson v. Principi, 18 Vet. App. 371, 377 (2004) (noting there is a legal distinction between filing a claim for service connection under 38 U.S.C. § 1110 and a claim for compensation under § 1151, and that an appellant may therefore have two separate claims for the same condition). It appears that the Veteran has asserted that he is entitled to an earlier effective date for the grant of service connection for prostatitis with hematuria. See, e.g., January 2015 statement. The effective date was assigned in an August 1992 rating decision and was not appealed by the Veteran. As a result, the decision is final and may not be revised absent clear and unmistakable error (CUE). See 38 C.F.R. § 3.105(a). A disagreement with how VA evaluated the facts is inadequate to raise a claim of CUE. See Luallen v. Brown, 8 Vet. App. 92, 95 (1995). If the Veteran wishes to have the effective date changed, he is welcome to file a motion for CUE in the August 1993 rating decision. Entitlement to an earlier effective date for the grant of service connection for prostatitis with hematuria will not be further discussed herein. 1. All service connection issues. The Veteran has repeatedly asserted that he was hospitalized at former Naval Station Treasure Island and Naval Hospital Oakland. See, e.g., January 2020 correspondence. He also discussed being hospitalized in the Philippines, see February 1994 correspondence, and his military personnel records reflect that he was a patient at the U.S. Naval Hospital at Subic Bay in July 1980. Military hospital records are sometimes not included in service treatment records (STRs). Thus, remand is necessary to try to obtain inpatient hospital records from Naval Station Treasure Island, Naval Hospital Oakland, and the U.S. Naval Hospital at Subic Bay throughout the Veteran's service, but especially in 1980. In its last remand, the Board sought treatment records from the Martinez VA Medical Center (VAMC) (described as Oakland and Mare Island). Such records were obtained, but there appears to be significant records missing from the Houston VAMC. Specifically, computerized records prior to January 2012 appear incomplete and pre-computer records do not appear to have been obtained. See April 2001 VA Martinez VAMC records (discussing a referral to the Houston VAMC). Thus, on remand, such records should be sought. Finally, September 2000 VA treatment records reflect treatment for the Veteran's hip at the University of California at Davis (UC Davis) medical facility. As these matters are being remanded anyway, the AOJ should attempt to obtain any outstanding relevant private treatment records. 2. Entitlement to service connection for a lumbar spine disability. The Veteran asserts that his back disability may be related to physical activities during service, such as playing basketball and climbing up and down stairs. See, e.g., August 2011 statement. STRs reflect reports of lower back pain. See, e.g., January 1979 STRs. It is unclear from the Veteran whether he has had back pain since service. The Veteran underwent a VA examination in October 2011, wherein he was diagnosed with lumber spine degenerative disc disease. During the examination, he reported that the date of onset was in approximately 1991, but that he fell in service. The examiner opined it was less likely than not that the Veteran's condition was related to service, but the opinion is inadequate because it relied on an absence of evidence and did not otherwise discuss the Veteran's report of long-term pain. Because there is no adequate opinion of record, remand for a new examination is necessary. During his February 2020 Board hearing, the Veteran asserted that his joint arthritis issuesincluding the back, knees, hips, right ankle, and feetwere related to his diagnosed sickle cell trait during service. See, e.g., September 1980 STRs. His representative asserted that there was research showing that the sickle cell trait causes issues related to joint arthritis. The Veteran is not service-connected for sickle cell trait. However, if a condition for which VA benefits are sought is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service, VA generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service. DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). Thus, the Board finds that it must determine whether sickle cell trait may be associated with service. Sickle cell trait is generally considered congenital, but an opinion is needed as to whether the condition is a congenital disease or defect. If it is a defect, service connection for a lumbar spine disability related to sickle cell trait is warranted only if sickle cell trait was subject to a superimposed disease or injury during service that resulted in additional disability. 3. Entitlement to service connection for right and left knee disabilities. The Veteran is diagnosed with osteoarthritis of the knees. See, e.g., March 2014 private letter. STRs reflect knee pain. See, e.g., January 1979 STRs. It is unclear whether he has had knee pain since service. He underwent a VA examination in October 2011, wherein the examiner only diagnosed right knee degenerative joint disease and opined it was less likely than not that the disability was related to service. The opinion is inadequate because it does not discuss the Veteran's left knee and relied on the absence of evidence in medical records. Thus, remand is necessary to obtain a new opinion. The Veteran also asserted that his knee arthritis is related to his sickle cell trait. See February 2020 Board hearing. As discussed above, on remand, an opinion should be sought related to his sickle cell trait. 4. Entitlement to service connection for right and left hip disabilities. The Veteran asserts that any hip condition is related to his physical activities in service. See August 2011 statement. It is unclear whether the Veteran has had hip pain since service. He was also in a motor vehicle accident in 1999, wherein he suffered hip and pelvis injuries. See, e.g., September 2000 VA treatment records. He underwent a VA examination in October 2011, wherein he was diagnosed with bilateral hip degenerative joint disease. The examiner opined it was less likely than not that the Veteran's hip disabilities were related to service. The examiner noted that the Veteran had a left femoral fracture from his post-service car accident, which caused his left hip condition. The opinion is inadequate because it did not discuss the Veteran's physical activities during service. As a result, remand for a new opinion is necessary. The Veteran also asserted that his hip arthritis is related to his sickle cell trait. See February 2020 Board hearing. As discussed above, on remand, an opinion should be sought related to his sickle cell trait. 5. Entitlement to service connection for right and left foot disabilities. It is unclear whether the Veteran has any diagnosed foot disabilities. However, he reported pain with functional impairment during his February 2020 Board hearing. He also reported, along with the other disabilities discussed above, that his physical activities impacted his feet. Given the low standards of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the Board finds that remand for a VA examination is necessary. The Veteran also asserted that his foot arthritis is related to his sickle cell trait. See February 2020 Board hearing. Although it is unclear if the Veteran has arthritis in his feet, an opinion should be sought on remand related to his sickle cell trait if he is diagnosed with arthritis. 6. Entitlement to service connection for a right ankle disability. The Veteran asserts that any right ankle condition is related to his physical activities in service. See August 2011 statement. It is unclear whether the Veteran has had right ankle pain since service. He underwent VA ankle examinations in October 2011 and August 2012, but no opinion was provided for his right ankle. Because there are no adequate opinions of record, remand is necessary. The Veteran also asserted that his right ankle arthritis is related to his sickle cell trait. See February 2020 Board hearing. Although it is unclear if the Veteran has right ankle arthritis, an opinion should be sought on remand related to his sickle cell trait if he is diagnosed with arthritis. 7. Entitlement to service connection for a disability manifesting in abdominal pain. The Veteran reported that he began to develop lower abdominal pain in the 1980s. See July 2011 VA examination. STRs shortly before separation from service reflect flank pain that had bothered him for years. See September 1980 STRs. A VA examiner found that the Veteran did not have an abdominal disability but stated that the Veteran had a history of kidney stones and chronic prostatitis, "both of which can contribute to abdominal pain." Id. The examiner's opinion is inadequate because it is unclear whether the Veteran's kidney stones are disability manifesting in abdominal pain that could be related to service. As a result, remand for a new examination is necessary. 8. Entitlement to a compensable evaluation prior to August 14, 2020 and in excess of 10 percent thereafter for left ankle sprain. The Veteran most recently underwent a VA ankle examination in August 2020. Even though the examination discusses range of motion measurement results on active and passive motion, none of the VA examinations of record provide such measurement results in weight-bearing and non-weight-bearing circumstances. See Correia v. McDonald, 28 Vet. App. 158, 165-170 (2016). Accordingly, remand is necessary for a new VA examination to obtain such information. 9. Entitlement to an increased rating in excess of 10 percent for chronic prostatitis with hematuria. The Veteran's chronic prostatitis with hematuria is rated pursuant to Diagnostic Code 7527, which provides that the disability is to be rated as voiding dysfunction or urinary tract infection. See 38 C.F.R. § 4.115b. He underwent an August 2020 VA male reproductive examination, but the examiner opined that the Veteran's voiding dysfunction was related to his non-service-connected kidney stones. Because the examiner did not provide a rationale for the opinion, remand for clarification is necessary. 10. Entitlement to TDIU. The Veteran should be provided the opportunity to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and provide any additional evidence relating to his inability to work during the appeal period. The matters are REMANDED for the following action: 1. The AOJ should obtain computerized copies of VA treatment records prior to January 2012 and any non-computer records from the Houston VAMC. 2. The AOJ should obtain copies of VA treatment records from March 2020 to the present. 3. The AOJ should obtain, if possible, records of relevant private evaluations and treatment the Veteran has received, to include from UC Davis. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 4. The AOJ should obtain in-patient hospital records from former Naval Station Treasure Island, Naval Hospital Oakland, and the U.S. Naval Hospital at Subic Bay during the Veteran's military service. Because such records are presumably in the custody of a Federal department or agency, the amount of effort needed to be expended in obtaining these records is governed by 38 C.F.R. § 3.159(c)(2). If such records are not received pursuant to the AOJ's request, the Veteran should be so notified and the AOJ's efforts should be documented in the claim file. 5. After the development in the first four directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any lumbar spine disability, bilateral knee disability, bilateral hip disability, bilateral foot disability, and right ankle 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, any lumbar spine disability, bilateral knee disability, bilateral hip disability, bilateral foot disability, and right ankle disability present during the appeal period (from 2011). (b.) For each lumbar spine disability, bilateral knee disability, bilateral hip disability, bilateral foot disability, and right ankle disability, 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 should determine and discuss whether the Veteran had continuous back, hip, knee, foot, or right ankle pain since service. The examiner must also discuss the Veteran's physical activities during service, such as playing basketball and climbing up and down stairs. (c.) Is any diagnosed arthritis in the lumbar spine, knees, hips, feet, or right ankle related to the Veteran's sickle cell trait? Please explain why or why not. A conclusory opinion relying solely on medical literature will not be deemed adequate. If any diagnosed arthritis in the lumbar spine, knees, hips, feet, or right ankle is related to the Veteran's sickle cell trait, please opine on and explain whether the Veteran's sickle cell trait is a congenital defect or disease. (A defect is a condition that can neither improve nor worsen. A congenital disease, for VA adjudication purposes, is a congenital condition that is subject to improvement and/or worsening.) If the Veteran's sickle cell trait is a congenital defect, is it subject to a superimposed disease or injury during service that resulted in additional disability? Please explain why. 6. After the development in the first four directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any disability manifesting in abdominal pain. 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 disabilities manifesting in abdominal pain present during the appeal period (from 2011). The examiner must discuss the July 2011 VA examiner's opinion that the Veteran's kidney stones and prostatitis could contribute to abdominal pain. (b.) For each disability manifesting in abdominal pain diagnosed other than prostatitis, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran's service-connected prostatitis with hematuria? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (c.) For each disability manifesting in abdominal pain diagnosed other than prostatitis, is it at least as likely as not (50% or greater probability) that the disability was either incurred in or otherwise related to the Veteran's active duty service? Please explain why. The examiner must discuss the Veteran's in-service report of flank pain for years and his statement of abdominal pain starting in the 1980s. 7. After the development in the first four directives is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected left ankle disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 8. After the development in the first four directives is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected prostatitis with hematuria. 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. If the Veteran's voiding dysfunction is not due to his prostatitis with hematuria, the examiner must explain why. A conclusory opinion will not be deemed adequate. 9. The AOJ should provide the Veteran appropriate notice of VA's duties to notify and assist regarding how to substantiate a claim for entitlement to TDIU, to include providing him a VA Form 21-8940. The Veteran should assist in the matter by providing the requested information. 10. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.