Citation Nr: 21041906 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-34 082 DATE: July 10, 2021 ORDER The request to reopen the claim of service connection for a low back disorder is granted. REMANDED Service connection for a low back disorder is remanded. Service connection for a bilateral hip disorder is remanded. Service connection for a right knee disorder is remanded. Service connection for a skin disorder is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to September 24, 2020, and in excess of 20 percent thereafter for left knee joint osteoarthritis with degenerative arthritis s/p meniscectomy residuals is remanded. Entitlement to an initial compensable rating for left knee scar s/p residuals meniscectomy associated with left knee joint osteoarthritis with degenerative arthritis, s/p residuals meniscectomy is remanded. Entitlement to an initial disability rating in excess of 10 percent for chronic left ankle sprain is remanded. Entitlement to an initial disability rating in excess of 10 percent for chronic right ankle sprain is remanded. Entitlement to an initial disability rating in excess of 30 percent prior to October 22, 2019, and in excess of 50 percent thereafter for generalized anxiety disorder is remanded. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Service connection for a back disability was denied in a May 2002 rating decision. The Veteran did not appeal the decision, and no new and material evidence was submitted within a year form the decision. As such, the decision became final. 2. Since the May 2002 rating decision new evidence has been submitted. Specifically, the Veteran submitted a February 2015 private medical opinion from Dr. H.S., who asserted "the current back problems began in service and have continued to this day, and are more likely than not permanently aggravated by the Veteran's altered gait from his service connected knee and bilateral ankles." The evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a back disorder, raises a reasonable possibility of substantiating the claim, and cures an evidentiary defect that existed at the time of the prior final denial, namely, the lack of a nexus to service. CONCLUSIONS OF LAW 1. The May 2002 rating decision denying service connection for a back disorder is final. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 20.1103 (2021). 2. New and material evidence having been received, the criteria for reopening the previously denied claim of service connection for a back disorder have been met. 38 U.S.C. §§ 1110, 1131, 5108 (2018); 38 C.F.R. §§ 3.303, 3.156 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January1978 to June 1992, including in the Southwest Asia Theater of Operations from December 1990 to March 1991 in Support of Operation Desert Shield/Storm. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2012 (skin, lumbar spine, anxiety disorder, left knee) and December 2013 (right ankle, left ankle, hips, and right knee) by a VA Regional Office (RO). In June 2018, the Board remanded all of the issues for further development, including acquisition of VA treatment records and VA examinations. In addition to the certified issues, the Board finds that the issue of TDIU has been reasonably raised by the evidence as part and parcel of the increased rating issues already on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected). For the reasons noted above, the Board has reopened the claim of service connection for a back disability. The Board will proceed to address the issue on the merits herein. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). REASONS FOR REMAND 1. Service connection for a low back disability 2. Service connection for a bilateral hip disability 3. Service connection for a right knee disability 4. Service connection for a skin disability The Veteran seeks service connection for a lumbar spine, bilateral hip, and right knee disability, to include as secondary to his service-connected bilateral ankle and left knee disabilities. He also seeks service connection for a skin disability. In addition to the expressly articulated theories of entitlement, the Board notes that the Veteran served in support of Desert Shield/Desert Storm in the Southwest Asia region and the current issues on appeal are also entitled to consideration under the presumptive provisions of 38 C.F.R. § 3.317. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000) (holding that VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded). Service treatment records (STRs) confirm that the Veteran was treated for back, left hip and right thigh, and skin (Seborrhea and acne ) complaints during service. During an April 2009 VA new patient consult, the Veteran complained of low back pain "since in 70s." He also reported that he had injured his back in January 2009 and was being treated by private providers. In February 2012, a VA examiner (Dr. D.M.M.) provided a negative nexus opinion regarding the issue of service connection for a lumbar spine disorder; and in February 2015 a private physician (Dr. H.S.) provided a positive nexus opinion. Dr. H.S. did not physically examine the Veteran, but instead stated "The entire claims file was available for my review." In June 2018, the Board remanded all of the issues for acquisition of VA medical records and new VA examinations; and in October 2019 new examinations were done by Dr. J.C.K., and negative nexus opinions were returned based, in part, on "no new/ updated medical evidence of record." However, the undersigned observes that these providers may not have been fully informed, as there has been relevant outstanding private medical records since 2009. Specifically, it appears that in 2009, the Veteran initiated a Workers' Compensation claim and was receiving treatment from a private provider(s) for a back injury. However, the respective records are not in the claim file. Additionally, in March 2010 the Veteran reported that he had applied for Social Security Administration (SSA) disability benefits, and current VA treatment records indicate that the Veteran receives "disability." However, a request has never been made to the SSA for the Veteran's records. Finally, according to current VA medical providers, the Veteran receives treatment from private providers and the respective medical records have been scanned into "Vista Imaging." See, e.g., VA medical record dated in November 2017, which reads "Attached to this note is a scanned copy of an outside medical record consisting of the following document(s): Progress Note, DOS: 11/17/17. To view the scanned document: 1) You must be logged into CPRS; 2) Click on "Toolbar"; 3) Sign on to "Vista Imaging"." There are many such entries throughout the Veteran's VA medical records, but the referenced private medical records have not been uploaded to the claim file. They are consequently not present for appellate review. Before a decision on the four issues for service connection, the private treatment records that have purportedly been scanned and are viewable via "Vista Imaging" must be uploaded to the claim file. A request should also be made for the remote (circa 2009) Workers' Compensation and private medical records, and for the Veteran's SSA disability records. The Veteran should then be afforded new VA examinations. See Caffrey, 6 Vet. App. 377, 381 (holding that the examiner "must consider the records of prior medical examinations and treatment in order to assure a fully informed examination"). 5. Entitlement to an initial disability rating in excess of 10 percent prior to September 24, 2020, and in excess of 20 percent thereafter for left knee joint osteoarthritis with degenerative arthritis s/p meniscectomy residuals The Veteran seeks a higher initial rating for his service-connected left knee disability. As stated above, in June 2018 the Board remanded the matter for a new VA examination, which was done in September 2020. The examiner documented the Veteran as reporting "cannot stand or walk more than 10 minutes, cannot climb stairs, causes pain, uses a mobility scooter for shopping." The examiner also documented the Veteran as complaining of daily flare-ups of the left knee of some 2-3 hours precipitated by activity and alleviated by medication. Initial range of motion testing elicited pain and less than full range of motion, which the examiner identified as 0 to 100 degrees flexion and 100 to 0 degrees extension. The examiner also said there was functional loss due to pain after repeated use over a period of time and during flare-ups; and provided the respective degrees of left knee range of motion for these measurements in the examination report. However, the figure that the examiner gave in the examination report (namely,full "0 to 140" degrees flexion during flare-ups ) does not make sense, as it suggests that left knee flexion improves during flare-ups by 30 degrees beyond normal function. Moreover, while pain was reported on motion, the examiner did not state where pain was first noted during range of motion testing. The, Board cannot properly assess functional loss without this measurement. Moreover, the examiner averred that there was "objective evidence of pain on passive range of motion testing of the left knee," but did not state what the degrees of passive range of motion are. The evidence is thus inadequate for rating purposes. Remand for a new VA examination is accordingly warranted. 6. Entitlement to an initial compensable rating for left knee scar On VA knee examination in September 2020, the examiner observed that there was a "scar x 3 - 0.5 x 0.5 holes in the left lateral medial and sub patellar area"; and in a rating decision dated January 19, 2021, the RO granted a separate rating for left knee scar s/p residuals meniscectomy (scar previously rated with DC 5260-5010) with an evaluation of 0 percent effective September 24, 2020. The RO then issued a SSOC that included the propriety of the initial 0 percent rating for the now separately rated scar component of the left knee disability. However, the December 2020 VA knee examination evidence is inadequate for proper evaluation of the scar. In order to sufficiently ascertain the severity/characteristics of the left knee scar another VA examination is needed. 7. Entitlement to an initial disability rating in excess of 10 percent for chronic left ankle sprain 8. Entitlement to an initial disability rating in excess of 10 percent for chronic right ankle sprain The Veteran is also seeking a higher initial rating for his service-connected ankle disabilities. As stated above, in June 2018 the Board remanded the matter for a new VA examination, which was done in September 2020. The examiner documented the Veteran as complaining of bilateral ankle flare-ups of some 2-3 hours precipitated by activity and alleviated by rest, ice, and medication; of pain with walking more than 10 minutes and difficulty climbing stairs, and of an inability to climb more than 1 flight of stairs. Initial range of motion testing found less than full range of motion and elicited pain, but the examiner said the pain did not result in / cause functional loss after 3 repetitions; and said there was no flare-up during the examination. However, the examiner acknowledged that the Veteran was not examined after repeated use over a period of time, which is significant since the Veteran had reported pain and loss of function/mobility after 10 minutes, and of flareups. Moreover, the exact point during range of motion testing where pain was first noted was not provided. The Board cannot properly assess functional loss without this measurement. Further, although the examination was not conducted during a flare-up, in view of the Veteran's report of flare-ups and additional loss of motion over time/after activity, the examiner should have estimated degrees of range of motion during flare-ups and over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that the examiner should "estimate the functional loss that would occur during flares"). Remand for a new VA examination is warranted. Additionally, the Court has recently held that ankylosis may be established if the Veteran's range of motion is, in effect, functionally ankylosed. See Chavis, U.S. Court of Appeals for Vet. Claims No. 18-2928 (decided April 16, 2021). In view of the Veteran's complaints of loss of ankle motion after activity, an opinion as to whether the Veteran's left and/or right ankle stiffness amounts to the functional equivalent of ankylosis (i.e., functional immobility of the joint) should be obtained. Id. 9. Entitlement to an initial disability rating in excess of 30 percent prior to October 22, 2019, and in excess of 50 percent thereafter for generalized anxiety disorder As stated before, in June 2018, the Board remanded the issue for a new VA examination. In October 2019, an examination was done; and on January 19, 2021, the RO issued a SSOC. However, and before the matter was returned to the Board, the Veteran underwent another VA Mental Disorders examination on January 22, 2021. The matter was not then readjudicated. See 38 C.F.R. § 19.31(b)(1). Remand for issuance of a new SSOC is warranted. 10. Entitlement to a TDIU is remanded. The issue of TDIU has been reasonably raised in conjunction with the rating of the service-connected psychiatric disability. The issue is inextricably intertwined with the other issues being remanded herein and as such decision on this issue is deferred. The matters are REMANDED for the following actions: 1. Request the Veteran's Social Security disability records. Document all efforts taken to obtain these records and all responses. 2. Take appropriate action to obtain all of the Veteran's Workers' Compensation records. Document all efforts taken to obtain these records and all responses. 3. Take appropriate action to obtain all of the medical records connected to the Veteran's Workers' Compensation claim. Document all efforts taken to obtain these records and all responses. 4. Upload all of the private medical records in VA's possession, that are presently only viewable through Vista, to the claim file. Document all efforts taken to complete this task. 5. After completion of the requests in 1-4 above, schedule the Veteran for a VA examination regarding the issues of service connection for low back, left and right hip, and right knee disabilities. The examiner must review the claim file and the examination report must note the claim file was reviewed. The examiner is asked to provide a response to the following: (a.) Identify all diagnoses related to the Veteran's back, left hip, right hip, and right knee. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) for each diagnosed back, left hip, right hip, and right knee disability (or, if there is no diagnosis, any discernible functional impairment of earning capacity of the back, left hip, right hip, and right knee), state whether it is at least as likely as not (50/50 probability) that the disorder i. began during active duty service. ii. began (for degenerative disease/arthritis), within the year after the Veteran's separation from active duty service. iii. is related to some incident of the Veteran's active duty service, such as the incidents of back and hip injury and pain chronicled in STRs. iv. was caused by, or is aggravated by, symptoms of the Veteran's service-connected bilateral ankle disabilities, and/or his service-connected left knee disability(s). A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. All conclusions or opinions offered must be accompanied by a complete rationale, citing to established medical principles and relevant medical evidence, such as examination findings, service treatment records, VA and private treatment records, the Veteran's contentions, or other pertinent evidence in the record to support the conclusions reached. In considering lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If the examiner concludes that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so should be provided. 6. After completion of the development requested in 1-4 above, schedule the Veteran for a VA examination regarding the issue of service connection for skin disorder(s). The examiner must review the claim file. The examination should be done during a period of outbreak, if possible. The examiner is asked to provide a response to the following: (a.) Describe the area(s) of outbreak and characteristics of each current/recurrent skin condition and provide the diagnosis for each skin condition. (b.) Opine, for each current/recurrent skin condition, as to whether it is at least as likely as not that that the disorder i. began during active duty service. In formulating this opinion, the examiner must discuss the Seborrhea and acne that manifested and was treated during active duty service. See, e.g., STRs dating from 1979 to 1988. ii. is related to some incident of active duty service, including the Veteran's environmental hazards and prophylactic agents applied to the Veteran's skin during his service in the Persian Gulf. See November 1999 VA Persian Gulf Registry Code Sheet. In considering the Veteran's lay assertions, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. Any conclusions or opinions offered must be accompanied by a complete rationale, citing to established medical principles and relevant medical evidence, such as examination findings, service records, VA and private treatment records, or other pertinent evidence in the record to support the conclusions reached. If the examiner concludes that the requested opinion cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so should be provided. 7. After completion of the development in 1- 4 above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee and bilateral ankle disabilities. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. (a.) In so doing, the examiner must measure range of motion of the left knee and ankles in active, passive, in both weight-bearing and nonweight-bearing circumstances. If pain is noted during range of motion testing, the exact point where pain is first noted must be clearly documented. If the examiner is unable to conduct the required testing in any of the requested categories (active motion, passive motion, weight-bearing, non-weight-bearing), the examiner should clearly explain why that is so. (b.) The examiner must also elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (c.) 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 based on the other evidence of record and the Veteran's statements. (d.) 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). (e.) The examiner is further asked to state whether any complained of stiffness, or observed immobility, constitutes the functional equivalent of ankylosis. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. 8. Schedule the Veteran for an examination by an appropriate clinician to ascertain the severity of the Veteran's service-connected left knee scar(s). The examiner must provide a full description of the scar(s) and report all characteristics, complaints, and symptoms necessary for evaluating the knee scar(s) under the rating criteria. 9. If upon completion of the above actions the issues remain denied, the appeal 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 P. Childers, 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.