Citation Nr: 23017167 Decision Date: 03/20/23 Archive Date: 03/20/23 DOCKET NO. 17-41 228 DATE: March 20, 2023 REMANDED Entitlement to service connection for depression as secondary to service-connected right knee and/or left hip is remanded. Entitlement to a disability rating in excess of 10 percent for right knee sprain with chondromalacia and meniscus tear status-post lateral meniscectomy (painful motion/limitation of flexion), excluding period of convalescence from December 3, 2018 to February 1, 2019, is remanded. Entitlement to a disability rating in excess of 10 percent for right knee sprain with chondromalacia and meniscus tear status-post lateral meniscectomy (cartilage removal, symptomatic) is remanded. Entitlement to a compensable disability rating for left hip limitation of flexion is remanded. Entitlement to a disability rating in excess of 10 percent prior to May 11, 2016 and a compensable disability rating thereafter for left hip limitation of extension is remanded. Entitlement to a disability rating in excess of 10 percent for left hip strain, thigh impairment 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 had active service from November 1992 to May 1996. These matters return to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran provided testimony via videoconference before the undersigned Veterans Law Judge. In November 2021, the Board remanded the claims for further development, to VA examinations on the current severity of his right knee and left hip disabilities. For the reasons stated below, a remand is once again warranted. 1. Entitlement to service connection for depression as secondary to service-connected right knee and/or left hip is remanded. An inferred claim for secondary service connection may be adjudicated as part and parcel of a claim for increase rating if the claim for service connection is reasonably raised and logically related to the increased rating claim on appeal. See 38 C.F.R. § 3.55(d)(2); Wilson v. McDonough, 35 Vet. App. 103 (2022); Bailey v. Wilke, 31 Vet. App. 188, 201 (2021). Moreover, VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, VA treatment records and a credible lay statement show the Veteran has been diagnosed with depression that may be etiologically related on a secondary basis to his service-connected right knee and/or left hip. For example, VA treatment records from December 2021 show the Veteran being treated with Cymbalta for depression and pain and Gabapentin for pain, anxiety, and neuropathy. Further, a December 2022 statement from the Veteran's wife explained that the Veteran was still in severe pain because of his knees and hips and becoming extremely depressed as a result. She noted once waking in the middle of the night to the Veteran crying because of the severity of his pain, and that he had been seeing a therapist for the past year. Accordingly, the Board finds evidence meets the low threshold of indicating there may be a nexus between the Veteran's depression and his service-connected right knee and/or left hip, but the Veteran has not been scheduled for a VA examination in this regard. Under these circumstances, remand for a VA examination on the etiology of the Veteran's depression as secondary to his service-connected right knee and/or left hip is warranted. McLendon, 20 Vet. App. at 83-86. Outstanding mental health therapy records should also be obtained. 2. Entitlement to a disability rating in excess of 10 percent for right knee sprain with chondromalacia and meniscus tear status-post lateral meniscectomy (painful motion/limitation of flexion), excluding period of convalescence from December 3, 2018 to February 1, 2019, is remanded. 3. Entitlement to a disability rating in excess of 10 percent for right knee sprain with chondromalacia and meniscus tear status-post lateral meniscectomy (cartilage removal, symptomatic) is remanded. A remand is required to schedule the Veteran for a VA examination on the severity of his right knee disability that properly estimates functional loss following repetitive use over time and does not contemplate the ameliorative effects of his pain management medications. The Veteran recently attended a VA examination on the severity of his right knee in September 2022. At the examination, he reported constant, sharp aching pain, sharp pains when turning the knee a certain way, and a feeling like the knee slid out of its joint. He further reported difficulty doing squats and walking greater than a quarter mile due to pain. He noted using CBD cream five times per week, a lidocaine patch seven times per month, and 600mg of Gabapentin per day; and receipt of injections to treat his right knee pain symptoms. Initial ranges of motion were recorded as flexion to 120 degrees and extension to 0 degrees. The examiner noted the Veteran experienced additional functional limitation following repetitive use over time, but estimated the Veteran's range of motion following repetitive use over time scenarios to be the same as his initial ranges of motion. In her December 2022 statement, the Veteran's wife noted he now had problems bending his right knee for more than a few seconds. Again, she recalled one evening when she woke to him crying due to his pain. Because the Veteran's wife's statement indicates his right knee disability is more severe than contemplated by the September 2022 VA examination, a remand is warranted to obtain its current severity. Moreover, the VA examiner noted the Veteran experienced additional functional loss after repetitive use over time, but did not estimate what the additional functional loss would be in terms of degrees of motion lost. Clarification is necessary. Additionally, the Court of Appeals for Veterans Claims (Court) has held that when assigning a disability rating, the Board is required to discount the ameliorative effects of medication unless such effects are explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). If the applicable Diagnostic Code specifically contemplates the effects of medication, Jones is inapplicable. See McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Here, medical evidence shows the Veteran receives a variety of medications to treat his pain. However, it is unclear if the September 2022 VA examiner considered the ameliorative effects of the Veteran's medications when recording and estimating the Veteran's right knee ranges of motion. Because the rating criteria under 38 C.F.R. § 4.71a for the knees do not explicitly contemplate the ameliorative effects of medication, an evaluation for this disability should, to the extent possible, contemplate its resulting functional limitations in the absence of medication. Lastly, the Veteran testified at his October 2020 hearing that he received private treatment for his right knee. The Board's November 2021 remand requested the RO ask the Veteran to supply authorizations for VA to obtain these records. A development letter towards this was sent to the Veteran in January 2022. Unfortunately, the Veteran did not respond. This remand will provide the Veteran another opportunity to supply necessary authorization for VA to obtain these outstanding private treatment records or to supply them on his own behalf. 4. Entitlement to a compensable disability rating for left hip limitation of flexion is remanded. 5. Entitlement to a disability rating in excess of 10 percent prior to May 11, 2016 and a compensable disability rating thereafter for left hip limitation of extension is remanded. 6. Entitlement to a disability rating in excess of 10 percent for left hip strain, thigh impairment is remanded. Similar to the Veteran's right knee increased rating claim, the Veteran's left hip increased rating claim must be remanded for a VA examination that does not contemplate the ameliorative effects of his pain medication. Again, the Board is required to discount the ameliorative effective of medication unless such effects are explicitly contemplated by the applicable rating criteria. Jones, 26 Vet. App. at 63. As the rating criteria for the hips do not contemplate the ameliorative effects of medication, the Board may not deny entitlement to higher ratings on the basis of relief provided by the use of such medication. The Board acknowledges the Veteran reported at his September 2022 VA hip examination that he did not take pain medication for his hip, that his only treatment for his left hip were frequent trips to the chiropractor and yoga. However, the Veteran's VA treatment records show that the medication he took had the dual benefit of providing anxiety and general pain relief. As the September 2022 VA examination report stands, it is unclear whether the examiner discounted the relief provided by the Veteran's pain medication. Towards this, the Board notes that the Veteran's wife's December 2022 statement indicates the pain he experienced in his knees and hips drove him to tearssymptoms worse than those recorded at his September 2022 VA examination. Moreover, considering the Veteran's private treatment records from August 2019 show a progression from previously noted hip pain to a diagnosis of hip osteoarthritis and his lay statements towards recurrent left hip subluxations and/or dislocations, the Board finds the September 2022 VA examiner should have obtained x-rays to properly investigate the current state of the Veteran's left hip joint. Accordingly, the Veteran's left hip increased rating claim is remanded for another VA hip examination. This remand will also provide the Veteran another opportunity to supply necessary authorization for VA to obtain his chiropractic records or for him to supply the records on his own behalf. 7. Entitlement to a TDIU is remanded. Because adjudication of the increased ratings claims remanded above may significantly impact the Veteran's claim for a TDIU, the Veteran's claim for a TDIU is remanded as inextricably intertwined with the remaining claims on appeal. The matters are REMANDED for the following actions: 1. Obtain outstanding VA treatment records. 2. Ask the Veteran to identify all private providers who have treated his right knee, left hip, and mental health disabilities and to complete the appropriate authorization and release forms so VA can obtain copies of his records. Notify the Veteran that he may submit copies of his records on his own behalf. All attempts to obtain private treatment records must be documented in the claims file. 3. Schedule the Veteran for an examination to determine the nature and etiology of his depression. The examiner must be provided access to the electronic claims file and indicate a review of such in the examination report. Following review of the claims file and examination of the Veteran, the examiner must opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's depression is (i) proximately due to or (ii) aggravated by the Veteran's service-connected right knee and/or left hip disabilities. Aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice connected disability. The VA examiner must provide complete rationales for any opinion rendered, to include separate findings and rationales relating to causation and aggravation. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner must be provided access to the electronic claims file and indicate a review of such in the examination report. The examiner should provide a full description of the right knee disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria, including the degree at which pain begins during range of motion testing. The examiner must test both knees in active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and following repetitive use over time. 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 and following repetitive use over time based on the other evidence of record and the Veteran's statements. 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). The VA examiner should provide an opinion, to the extent possible, as to the estimated functional impairment of the right knee when not subject to the ameliorative effects of medication (with opinions as to estimated additional loss of range of motion as compared to the results displayed at the time of the examination, if indicated and feasible). A clear rationale for all opinions expressed must be included. However, if the examiner cannot respond to any inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 5. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran's service-connected left hip disability. The examiner must be provided access to the electronic claims file and indicate a review of such in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including taking x-rays to identify the current state of the Veteran's left hip joint. The examiner should provide a full description of the left hip disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria, including the degree at which pain begins during range of motion testing. The examiner must test both hips in active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and following repetitive use over time. 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 and following repetitive use over time based on the other evidence of record and the Veteran's statements. 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). The VA examiner should provide an opinion, to the extent possible, as to the estimated functional impairment of the right knee when not subject to the ameliorative effects of medication (with opinions as to estimated additional loss of range of motion as compared to the results displayed at the time of the examination, if indicated and feasible). A clear rationale for all opinions expressed must be included. However, if the examiner cannot respond to any inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 6. Readjudicate the claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.