Citation Nr: 22018196 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-14 915 DATE: March 28, 2022 ORDER A separate 10 percent rating for left knee instability, beginning December 1, 2014, is granted. A separate 10 percent rating for a left knee meniscectomy, beginning December 1, 2014, is granted. Service connection for tinnitus is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the spine with herniated lumbar disc (back disorder) is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of left knee injury, with osteoarthritis and patellofemoral pain syndrome (left knee disorder) is remanded. Entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee meniscectomy is remanded. Entitlement to an initial compensable rating for healed fracture of the mid left clavicle and mild deformity (left shoulder disorder) is remanded. Entitlement to an initial compensable rating for dyshidrotic dermatitis of both palms (skin disorder) is remanded. Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder is remanded. Entitlement to service connection for a left lower extremity (LLE) neurological disorder, to include as due to an undiagnosed multisymptom illness and/or secondary to the service-connected back disorder and/or secondary to service-connected diabetes is remanded. Entitlement to service connection for a right lower extremity (RLE) neurological disorder, to include as due to an undiagnosed multisymptom illness and/or secondary to the service-connected back disorder and/or secondary to service-connected diabetes is remanded. Entitlement to service connection for a disorder manifested in left ear hearing loss is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Beginning December 1, 2014, the Veteran's left knee manifested in slight instability. 2. Beginning December 1, 2014, the Veteran's left knee manifested in removal of the meniscus with symptomatic residuals. 3. The Veteran's tinnitus incurred during active-duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate 10 percent rating for a left knee instability, beginning December 1, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020). 2. The criteria for entitlement to a separate 10 percent rating for a left knee meniscectomy, beginning December 1, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1989 to April 1995, and from April 1999 to November 2014, to include service in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2015, June 2015 and February 2016 by the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey. The Veteran requested a hearing for his pending appeals before the Board in his March 2017 substantive appeal. In October 2021, through his representative, the Veteran withdrew his request for a hearing. 38 C.F.R. § 20.704(e). New evidence has been added to the record since the issuance of the February 2017 statement of the case (SOC) and the March 2017 SOC. In January 2022, the Board sent a letter to the Veteran which provided him with an opportunity to waive agency of original jurisdiction (AOJ) review of the new evidence within 45 days. The 45 days have run, and the Veteran has not responded. Accordingly, Board must remand the claims so the AOJ can issue a supplemental statement of the case (SSOC). The decision herein partially grants the Veteran's appeal and remands the remaining appeals; therefore, there is no prejudice to the Veteran by the Board proceeding because the AOJ will have an opportunity to review the new evidence upon the remand. Finally, the Board finds that the Veteran has reasonably raised a claim for a total disability rating due to individual unemployability in conjunction with current increased rating claims, as evidenced by an October 2019 Fully Developed Claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to increased ratings for the left knee Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As noted below, the Board has remanded claims concerning the Veteran's underlying left knee condition; initially rated as 10 percent disabling. This remand, however, does not preclude the Board from addressing the question of whether separate evaluations are warranted for instability and a symptomatic meniscal condition. See VAOPGCPREC 9-98 (August 14, 1998). In October 2013 service treatment records (STRs) the examiner noted the Veteran's left knee gives way. And the left knee MRI showed a meniscal tear. In the July 2014 separation examination, the Veteran reported that his knee gave out up to three times per week; and ongoing stiffness and locking sensations. The Veteran was provided with a VA examination in April 2015. The Veteran reported that the knee buckled and popped. The Board does note the Veteran provided lay testimony that he experiences feelings of knee instability. The Veteran reported giving way in the VA examination and STRs within close proximity to the date of claim. The Board notes the record is negative for any objective medical findings of left knee instability. Affording the Veteran the benefit of the doubt without substantiating objective medical evidence of instability, the Board finds the Veteran is entitled to separate 10 percent ratings due to slight left knee instability beginning December 1, 2014, the date of claim. In making this determination, the Board is aware that, effective February 7, 2021, VA amended the regulations pertaining to the evaluation of disabilities of the musculoskeletal system, including those of the knee. 85 Fed. Reg. 76460 (Nov. 30, 2020). These rating changes are focused on objective knee findings. However, the Board here has applied the previous version of Diagnostic Code 5257, which applies throughout the pendency of the appeal, in making a finding of slight instability and assigning 10 percent evaluations. The rating criteria change, therefore, does not preclude a continued 10 percent evaluation beyond February 7, 2021. Diagnostic Codes 5259 provides a 10 percent rating for a symptomatic meniscal condition. Here, the evidence of record shows that the Veteran was diagnosed with a torn meniscus in October 2013, and the Veteran reported locking in July 2014 STRs. Accordingly, the Veteran's meniscal tear was symptomatic since the initial claim for a left knee condition; and therefore, the Board finds the Veteran's left knee meniscal condition warrants an initial separate 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Accordingly, separate initial 10 percent evaluations are warranted for instability and a symptomatic meniscal condition of the left knee. To this extent only, the appeals are granted. The question of whether even higher evaluations are warranted will be addressed on remand. 2. Entitlement to service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic disabilities are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran was provided a VA examination in April 2015. The examiner diagnosed the Veteran with recurrent tinnitus. The Veteran reported the tinnitus started two years prior to the examination. The examiner provided a negative nexus opinion. The Veteran was provided with a VA examination in February 2020. At that time, the Veteran reported that his tinnitus began approximately 10 years prior. The Board notes the examiner was unable to provide an opinion without resorting to mere speculation. The record does not contain a positive medical nexus opinion. However, the Board finds the Veteran's lay testimony regarding the onset of tinnitus occurring during the second period of active-duty service highly probative. The Veteran is competent to provide testimony as to the symptomology and etiology of his tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that a veteran is competent to identify tinnitus). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The April 2015 examiner provided a negative nexus opinion for tinnitus, and the Veteran provided credible and competent testimony of a tinnitus beginning during active-duty service. Accordingly, service connection for tinnitus is warranted, and the claim is granted. 38 C.F.R. § 5107(b). REASONS FOR REMAND New and relevant medical records have been added to the record since the issuance of the February 2017 and March 2017 SOCs, to include private treatment records, VA treatment records, and VA examinations. The Veteran was provided the opportunity to waive AOJ review of the new evidence in January 2022. The 45-day window has run, and the Veteran did not waive AOJ review. Therefore, in accordance with 38 C.F.R. § 19.37, remand is required for the AOJ to issue a SSOC for the afore mentioned issues. 1. Entitlement to increased ratings for the back disorder, left knee disorder, and left clavicle are remanded. The Board notes an April 2015 VA shoulder examination, April 2015 VA back examination, and September 2019 VA knee examination failed to provide estimated range of motion measurements for the Veteran's disabilities after repeated use over time and due to flare-ups. Accordingly, these examinations are inadequate and remand for new knee and shoulder examinations is needed. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Additionally, the Board notes the Veteran reported a worsening of his back condition in October 2019. The Board notes the Veteran's last VA back examination was conducted approximately seven years ago. Therefore, a new examination is necessary to determine the current severity of the Veteran's back condition. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to increased ratings for a skin condition and an acquired psychiatric condition are remanded. Remand is necessary for readjudication of the Veteran's skin and psychiatric rating claims due to new evidence received since the issuance of the February 2017 and March 2017 SOCs. 38 C.F.R. § 19.37. 3. Entitlement to service connection for bilateral lower extremity neurological disorders are remanded. There is evidence of a neurological symptoms during the Veteran's active-duty service, to include neurological pain secondary to a lumbar spine disorder. See July 2011 STR; April 2013 STR; July 2014 STR. There is additional post-service evidence of neurological pain, to include evidence of neuropathy associated with diabetes. See April 2015 VA treatment records; January 2016 VA treatment records; January 2017 VA treatment records. The Veteran was provided a VA back examination and VA peripheral nerve examination in April 2015. Neither examination diagnosed the Veteran with any peripheral nerve condition. The Board notes that a lower extremity neurological condition diagnosed during the appellate period, even if currently resolved, qualifies as a current disability for the purposes of the service connection claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Based on the evidence of record, the service connection claims for neurological conditions are inextricably intertwined with increased rating claim for a back condition. The Board further notes the Veteran was granted service connection for diabetes mellitus, type II, (DMII) in a February 2020 rating decision. Addendum opinions are necessary to determine if any diagnosed lower extremity neurological conditions are secondary to the service-connected lumbar spine or DMII disorders. In addition, the Veteran served in Southwest Asia. The April 2015 VA examiner provided negative findings for a current diagnosed disorder, and therefore the addendum opinion should address whether the Veteran's neurological symptoms are due to a chronic undiagnosed illness related to his service in Southwest Asia. 4. Entitlement to service connection for a disorder manifested in left ear hearing loss is remanded. The Veteran's STR s show constant treatment for left ear hearing loss during the Veteran's first period of active-duty service. The Veteran's STR s from the second period of active-duty service, to include the Veteran's separation examination in July 2014 showed a diagnosis for hearing loss. The Board notes the enlistment examination in January 1998 is negative for hearing loss. The record does not contain an enlistment examination for the Veteran's first period of active service. The Veteran was provided a VA examination in April 2015. The examiner diagnosed the Veteran with left ear hearing loss. The examiner provided a negative nexus opinion; however, in the rationale, the examiner noted that they were unable to provide a clear-cut opinion and recommended the Veteran see a "ENT." The April 2015 examiner also determined the hearing loss existed prior to service, but was not aggravated beyond normal progression by military service. The Board notes all available STRs were requested. See November 2014 Request for information; November 2014 Correspondence. Although STRs were provided, there is no entrance or enlistment examination in close proximity to the Veteran's entry into active service in February 1989. There is no indication as to whether the Veteran was not provided an examination at entrance or whether the record is lost. It is presumed that an entrance examination was furnished prior to or at entrance to any period of active duty. Quirin v. Shinseki, 22 Vet. App. 390, 397 n.5 (2009). If an entrance examination is lost or missing, the presumption of soundness applies. See id. If an entrance examination was not provided, then the presumption of soundness does not apply. Here, there is no indication whether an entrance examination was provided for the February 1989 active-duty period to the Veteran or whether the examination report was lost or destroyed. The Board will apply the doctrine of reasonable doubt and construe the record in favor of the Veteran. Therefore, the Board presumes he was afforded an entrance examination prior to the first period of service and that it was lost or destroyed. Thus, the Veteran is also presumed sound on entry to this period of service. Therefore, an opinion is necessary to determine if the left ear hearing loss clearly and unmistakably preexisted both periods of active-duty service. The Board notes the standard for a preexisting condition was also incorrect as the examiner did not determine if the preexisting hearing loss was clearly and unmistakably not aggravated by active-duty service. In the June 2015 VA ear examination, the examiner found the left ear hearing loss was less likely than not due to acoustic trauma in military service; however, the examiner did not provide rationale to support the opinion. The Veteran was provided a VA hearing loss examination in February 2020. The examiner found normal left ear hearing. The examiner provided a positive opinion; however, the examiner did not provide any rationale to support the opinion. The prior VA nexus opinions failed to provide adequate rationale to support the nexus opinions provided, and therefore, an addendum opinion is necessary to determine the nature and etiology of the Veteran's left ear hearing loss. 5. Entitlement to service connection for bilateral foot disorders are remanded. The enlistment examination in January 1998 is negative for evidence of foot disorders. The record does not contain an enlistment examination for the Veteran's first period of active service. The Veteran was provided a VA examination in April 2015. The examiner provided a negative nexus opinion, determining the bilateral pes planus was a congenital condition, and the condition manifesting in both feet was evidence against finding the right foot in-service injury caused the bilateral pes planus. An addendum opinion was provided in May 2015, and the examiner determined the pes planus condition was not aggravated beyond its natural progression during service. As noted above, the presumption of soundness applies, and an opinion is necessary to determine if the pes planus clearly and unmistakably preexisted either period of active service. The Board also notes the standard provided in the opinion was incorrect as the examiner did not determine if the preexisting pes planus was clearly and unmistakably not aggravated by active-duty service. In addition, the examiner must address both periods of active-duty separately. Therefore, an addendum opinion is necessary to determine the nature and etiology of the Veteran's bilateral foot disorders. 6. Entitlement to a TDIU is remanded. The Board finds that the evidence in this case has reasonably raised a claim for TDIU in conjunction with the appeals for higher disability ratings. Rice, supra. The claim for TDIU is inextricably intertwined with the granted and remanded claims, and must be remanded. The Veteran should be provided with 38 C.F.R. § 3.159(b) notice of the requirements for a TDIU claim. The matters are REMANDED for the following action: 1. Send the Veteran proper notice under 38 C.F.R. § 3.159(b) informing him of what is needed to substantiate a claim for TDIU. The Veteran should be provided a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Schedule the Veteran for a VA examination for his service-connected back disability. 3. Schedule the Veteran for a VA examination for his service-connected left knee disability. The AOJ should ensure that the resulting report includes an adequate rationale for the assessment of the Veteran's knee under the rating criteria in effect prior to February 7, 2021 as well as the revised rating criteria effective February 7, 2021. 4. Schedule the Veteran for a VA examination for his service-connected left shoulder disability. 5. Forward the claims file to a qualified VA medical professional to provide an addendum opinion as to the nature and etiology of the Veteran's claimed lower extremity neurological disorders. (Appropriate VA examinations may be provided if necessary.) The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to address the following: Provide a current (at any point throughout the appeal) diagnosis for any lower extremity neurological disorders; If the Veteran does not now have, but previously had, any diagnosed disorder, indicate when that disorder resolved; For each diagnosed disorder, is it at least as likely as not (that is, a 50 percent probability or greater) that the disorder had its onset during or is otherwise related to any event or injury during active-duty periods of February 1989 to April 1995 and/or April 1999 to November 2014; For each diagnosed disorder, is it at least as likely as not caused or aggravated (increased in severity beyond the natural progression of the disorder) by the service-connected lumbar spine disorder; For each diagnosed disorder, is it at least as likely as not caused or aggravated (increased in severity beyond the natural progression of the disorder) by the service-connected DMII disorder; IF a nexus to service cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis; and IF, after reviewing the claims file, it is determined that the Veteran's disability pattern is consistent with either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during active duty to include his service in Southwest Asia. In answering all questions, please articulate the reasoning underpinning the conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support the opinion, and (2) explain how that evidence justifies the opinion. 6. Forward the claims file to a qualified VA medical professional to provide a VA addendum opinion as to the nature and etiology of the Veteran's claimed left ear hearing loss. (Appropriate VA examinations may be provided if necessary.) The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to opine whether any currently diagnosed left ear hearing loss clearly and unmistakably preexisted the Veteran's first period of active duty (February 1989 to April 1995); IF so, was any such disability clearly and unmistakably NOT aggravated beyond its natural progression by the Veteran' first period of active duty; Opine whether any currently diagnosed left ear hearing loss clearly and unmistakably preexisted the Veteran's second period of active duty (April 1999 to November 2014); IF so, was any such disability clearly and unmistakably NOT aggravated beyond its natural progression by the Veteran' second period of active duty; IF any left ear hearing loss did not preexist active duty, is it at least as likely as not (that is, a 50 percent probability or greater) that the disorder incurred during or was caused by periods of active duty. In answering all questions, please articulate the reasoning underpinning the conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support the opinion, and (2) explain how that evidence justifies the opinion. 7. Forward the claims file to a qualified VA medical professional to provide a VA addendum opinion as to the nature and etiology of the Veteran's claimed foot disorders. (An appropriate VA examination may be provided if necessary.) The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to opine whether any currently diagnosed foot disorders clearly and unmistakably preexisted the Veteran's first period of active duty (February 1989 to April 1995); IF so, was any such disability clearly and unmistakably NOT aggravated beyond its natural progression by the Veteran' first period of active duty; Opine whether any currently diagnosed foot disorders clearly and unmistakably preexisted the Veteran's second period of active duty (April 1999 to November 2014); IF so, was any such disability clearly and unmistakably NOT aggravated beyond its natural progression by the Veteran' second period of active duty; IF any foot disorder did not preexist active duty, is it at least as likely as not (that is, a 50 percent probability or greater) that the disorder incurred during or was caused by periods of active duty. In answering all questions, please articulate the reasoning underpinning the conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support the opinion, and (2) explain how that evidence justifies the opinion. 8. After the afore mentioned development is completed, the AOJ must issue a SSOC, including the skin condition, acquired psychiatric condition, and TDIU claims, that includes a review of all evidence received since the February 2017 and March 2017 SOCs. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.