Citation Nr: 23058366 Decision Date: 10/27/23 Archive Date: 10/27/23 DOCKET NO. 18-46 223 DATE: October 27, 2023 REMANDED Entitlement to a rating in excess of 20 percent for a low back strain prior to October 29, 2015 is remanded. Entitlement to a rating in excess of 40 percent for a low back strain from October 29, 2015 to July 16, 2016 is remanded. Entitlement to a rating in excess of 20 percent for a low back strain from July 16, 2016 is remanded. Entitlement to an initial rating in excess of 20 percent for left knee strain, limitation of extension is remanded. Entitlement to an initial compensable rating for left knee strain, limitation of flexion is remanded. Entitlement to a rating in excess of 50 percent bilateral pes planus from May 1, 2017 is remanded. Entitlement to a rating in excess of 20 percent for left foot pes planus from October 29, 2015 to May 1, 2017 is remanded. Entitlement to an effective date prior to May 1, 2017 for Dependent's Educational Assistance (DEA) benefits is remanded. REFERRED The issue of whether there was clear and unmistakable error regarding the claim of service connection for a cervical condition was raised by the Veteran's representative during the August 2023 Board hearing. However, this issue has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue, and it is referred to the AOJ for appropriate action. REASONS FOR REMAND The Veteran served in the United States Air Force from July 1996 to September 2005 and from June 2007 to December 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in February 2022, at which time they were remanded for additional development. The Veteran testified before the undersigned Veterans Law Judge during an August 2023 videoconference hearing, and a transcript of this hearing is associated with the claims file. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for a low back strain prior to October 29, 2015 is remanded. 2. Entitlement to a rating in excess of 40 percent for a low back strain from October 29, 2015 to July 16, 2016 is remanded. 3. Entitlement to a rating in excess of 20 percent for a low back strain from July 16, 2016 is remanded. The Veteran contends that his low back condition is manifest by symptoms warranting higher ratings throughout the appeal period. In its February 2022 remand, the Board instructed the RO to obtain a new VA examination addressing the nature and severity of the Veteran's low back condition. The Veteran underwent a VA examination in April 2022. The Veteran reported that surgery for his low back condition was recommended but never performed, and instead he is currently undergoing pain management. Even after multiple epidurals and an ablation in 2021, the Veteran's symptoms have not improved. The examiner noted that an increased body mass index was a contributing factor to the Veteran's disability, stating that the increased weight adds to the stress on the Veteran's body, especially when combined with any decrease in activity and resulting decrease in muscle mass related to the Veteran's chronic low back pain. However, at that time, the examiner noted the Veteran denied examination because "he is unable to tolerate such procedures." Because of this, there are no measurements for any range of motion for the Veteran's low back. During the August 2023 hearing, the Veteran's representative stated that they were not arguing that the VA examinations were inadequate. Instead, they were arguing that the October 2015 private examination and opinion by Dr. J.W.E. should be given greater weight when considering the benefit of the doubt in the Veteran's favor. Dr. J.W.E. found the Veteran's low back condition warrants a 60 percent rating, and the representative argued for this rating to apply to the entire period on appeal. The Board finds the April 2022 examination to be inadequate. While the examiner noted the Veteran declined examination because he was "unable to tolerate such procedures," it is unclear as to whether the Veteran was temporarily unable to perform these movements due to pain or fear of pain, or if his condition had progressed to a point where he was physically incapable of performing any of the required movements. Without actual range of motion measurements, estimated measurements, or other explanation regarding the nature and severity of the Veteran's low back condition, the Board is unable to determine an appropriate rating. Furthermore, although the Board acknowledges Dr. J.W.E.'s October 2015 private examination and the representative's argument that this examination should be used to determine the severity of the Veteran's low back condition, the Board previously concluded that the significant difference between Dr. J.W.E.'s range of motion findings and all other range of motion findings of record needed to be addressed. This still holds true, and therefore the Board finds that remand is necessary in order to obtain a new examination on the nature and severity of the Veteran's low back condition. 4. Entitlement to an initial rating in excess of 20 percent for left knee strain, limitation of extension is remanded. 5. Entitlement to an initial compensable rating for left knee strain, limitation of flexion is remanded. The Veteran contends that his left knee condition is manifest by symptoms warranting higher ratings for both decreased flexion and decreased extension throughout the appeal period. In its February 2022 remand, the Board instructed the RO to obtain a new VA examination addressing the nature and severity of the Veteran's left knee condition. The Veteran underwent a VA examination in April 2022. The Veteran reported having torn his meniscus during service, although he never underwent left knee surgery. He also stated that he was issued a knee brace in 2020 due to instability and pain. The Veteran described experiencing constant intense pain and being unable to move. However, at that time, the examiner noted the Veteran denied testing because "he is unable to tolerate such procedures." As such, no range of motion measurements were provided. Despite this, the examiner stated that, after reviewing the record and the Veteran's statements, they had no basis to find additional functional or range of motion loss regarding repetitive use or flare-ups. The examiner ultimately concluded that they were unable to determine the Veteran's current left knee functionality based on the examination, noting that the current x-rays and available medical records demonstrated no objective evidence supporting the Veteran's statements concerning meniscus issues. In June 2023, the Veteran submitted an October 2015 private examination by Dr. J.W.E. in which the physician noted the Veteran had severe knee pain, especially with prolonged sitting or standing and climbing or descending stairs. Dr. J.W.E. also noted the Veteran had a decreased range of motion, finding his left knee flexion was to 105 degrees, while his left knee extension was to -10 degrees. Additionally, Dr. J.W.E. found the Veteran had mild medial collateral ligament instability and mild lateral collateral ligament instability, as well as a meniscus pathology and traumatic arthritis. Dr. J.W.E. suggested the Veteran receive a 20 percent rating under Diagnostic Code (DC) 5258, two separate 10 percent ratings under DC 5257 for both forms of instability, and 10 percent under DC 5003 for traumatic arthritis. During the August 2023 hearing, the Veteran's representative stated that they were not arguing that the VA examinations were inadequate. Instead, they were arguing that the October 2015 private examination and opinion by Dr. J.W.E. should be given greater weight when considering the benefit of the doubt in the Veteran's favor. Dr. J.W.E. found the Veteran's left knee condition warranted ratings under multiple diagnostic codes, with the representative referencing DCs 5003, 5257, 5258, and 5058. While the Veteran is currently in receipt of a 20 percent rating for limitation of extension, the representative argued the Veteran's left knee condition is manifest by conditions and symptoms that should be considered under additional diagnostic codes of the knee. The Board finds the April 2022 examination to be inadequate. While the examiner noted the Veteran declined examination because he was "unable to tolerate such procedures", it is unclear as to whether the Veteran was temporarily unable to perform these movements due to pain or fear of pain, or if his condition had progressed to a point where he was physically incapable of performing any of the required movements. Without actual range of motion measurements, estimated measurements, or other explanation regarding the nature and severity of the Veteran's left knee condition, the Board is unable to determine an appropriate rating, Additionally, although the examiner found the evidence of record and Veteran's reports showed no basis for additional functional or range of motion loss regarding repetitive use of flare-ups, the examiner also stated they could not determine the Veteran's current left knee functionality. These two statements appear to be in conflict with each other, and therefore are of little utility in determining the current nature and severity of the Veteran's left knee condition. Regarding Dr. J.W.E.'s October 2015 examination, the Board finds this to be of little probative value. Although Dr. J.W.E. stated the Veteran had left knee instability, it is unclear how they determined the Veteran had instability because it appears that no instability testing was performed. Additionally, Dr. J.W.E. noted the Veteran's extension as being -10 degrees, indicating the Veteran's left knee was hyperextending, which appears to be contrary to other range of motion measurements in the record. Thus, the Board cannot use Dr. J.W.E.'s October 2015 opinion to determine the appropriate ratings for the Veteran's left knee condition. As there are no adequate left knee examinations of record, the Board must again remand this claim for a new examination addressing the nature and severity of the Veteran's left knee condition. 6. Entitlement to a rating in excess of 50 percent bilateral pes planus from May 1, 2017 is remanded. 7. Entitlement to a rating in excess of 20 percent for left foot pes planus from October 29, 2015 to May 1, 2017 is remanded. In its February 2022 decision, the Board remanded only the issues of whether a rating in excess of 50 percent for bilateral pes planus from May 1, 2017 was warranted, as well as whether a rating in excess of 20 percent from October 29, 2015 to May 1, 2017 was warranted. The Board also instructed the RO to address whether the Veteran's 50 percent rating for bilateral pes planus violates the Amputation Rule with respect to his right lower extremity because he is also in receipt of a 40 percent rating for right lower extremity polyneuropathy and a 20 percent rating for a right ankle disability. However, in its December 2022 Supplemental Statement of the Case (SSOC), the RO only addressed whether the Veteran's bilateral pes planus warranted a rating in excess of 50 percent from May 1, 2017. There was no discussion on whether the rating for bilateral pes planus, right lower extremity polyneuropathy, and right ankle condition disability ratings violate the Amputation Rule, nor was there any discussion on whether the Veteran's left foot pes planus warranted a rating in excess of 20 percent from October 29, 2015 to May 1, 2017. As such, the Board finds that the RO failed to comply with its February 2022 remand instructions, and thus another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. 8. Entitlement to an effective date prior to May 1, 2017 for Dependent's Educational Assistance (DEA) benefits is remanded. The effective date assigned for the grant of DEA benefits is based on the date at which the Veteran is in receipt of a total disability rating, whether that be 100 percent, or the grant of total disability based on individual unemployability (TDIU). As such, the Veteran's claim of entitlement to an effective date prior to May 1, 2017 for the award of basic eligibility for DEA benefits is inextricably intertwined with the above increased rating claims because the outcome of those claims may impact the date of entitlement for these benefits. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with a qualified examiner in order to determine the nature and severity of the Veteran's low back condition. If the Veteran is unable to perform any range of motion movements, the examiner is to specify why, as well as provide an estimated range of motion, if possible. A complete rationale is required for all opinions given. The Veteran is to note that range of motion measurements are necessary in order to determine the nature and severity of his low back condition and providing an accurate rating per the diagnostic code criteria. The Board understands that certain movements may result in pain; however, the Board encourages the Veteran to perform any necessary movements to the best of his ability so his low back condition can be properly rated. 2. Schedule the Veteran for an examination with a qualified examiner in order to determine the nature and severity of the Veteran's left knee condition. If the Veteran is unable to perform any range of motion movements, the examiner is to specify why, as well as provide an estimated range of motion, if possible. A complete rationale is required for all opinions given. The Veteran is to note that range of motion measurements are necessary in order to determine the nature and severity of his left knee condition and providing an accurate rating per the diagnostic code criteria. The Board encourages the Veteran to perform any necessary movements to the best of his ability so his left knee condition can be properly rated. 3. The RO must review the Veteran's 50 percent rating for bilateral pes planus in terms of the combined ratings for the right lower extremity below the knee, with consideration of the Amputation Rule. 4. Obtain an addendum opinion from a qualified examiner addressing the nature and severity of the Veteran's left foot pes planus from October 29, 2015 to May 1, 2017. If the examiner determines an in-person examination is necessary, one shall be scheduled. (continued on next page) ? 5. After completing the above development, the RO should determine whether an earlier effective date for DEA benefits is warranted. B. D. WATSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.