Citation Nr: 24018317 Decision Date: 04/30/24 Archive Date: 04/30/24 DOCKET NO. 18-34 413A DATE: April 30, 2024 ORDER The appeal of the issue of entitlement to service connection for a low back disability is dismissed. REMANDED Entitlement to a disability rating in excess of 10 percent for right ankle disability is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right ankle disability, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected right ankle disability, is remanded. Entitlement to a total a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT In an October 2023 rating decision, service connection for lower back degenerative disc disease other than intervertebral disc syndrome with spinal stenosis was granted, representing a full grant of the benefit sought on appeal, and there remains no question of fact or law to be decided by the Board. CONCLUSION OF LAW The criteria for dismissal of the appeal of the issue of entitlement to service connection for a low back disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2023). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to November 1980. In the April 2015 rating decision on appeal, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a low back, left knee, and right knee disability as well as an increased rating in excess of 10 percent for the Veteran's service-connected right ankle disability. The Veteran expressed disagreement with this decision in July 2015. Subsequent to that decision, in April 2016, the RO denied other service connection claims as well as entitlement to a TDIU. The RO continued to deny entitlement to service connection for a low back, left knee, and right knee disability as well as an increased rating in excess of 10 percent for service-connected right ankle disability in a June 2018 statement of the case, to which the Veteran perfected an appeal to the Board of Veterans' Appeals (Board) by filing a VA form 9 in July 2018. This matter was previously before the Board in March 2023, and was remanded for additional development. The case has since returned to the Board for the purposes of appellant disposition. 1. Entitlement to service connection for a low back disability The Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). Where the benefit sought by a claimant has already been granted in full, the issue is moot on appeal. See, e.g., Henderson v. West, 11 Vet. App. 245, 246 (1998) (per curiam order). Following the Board's remand, the agency of original jurisdiction (AOJ) arranged for a lower back examination as directed. In the October 2023 rating decision, the Veteran was granted service connection for lower back degenerative disc disease other than intervertebral disc syndrome with spinal stenosis, effective January 5, 2015. Given that the Veteran's appeal had sought entitlement to service connection for lower back disability, the subsequent award of service connection for lower back degenerative disc disease other than intervertebral disc syndrome with spinal stenosis constitutes a full grant of the benefit he was seeking. There is, therefore, no case or controversy remaining as to the issue of entitlement to service connection for a low back disability, and the issue is therefore dismissed as moot. See Henderson, 11 Vet. App. at 246. REASONS FOR REMAND Although the Board regrets the delay, upon review of the claims file, the Board believes that additional development on the remaining claims is warranted. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In addition, the U.S. Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Increased Rating 1. Entitlement to a disability rating in excess of 10 percent for right ankle disability The Veteran contends that an increased disability rating in excess of 10 percent for his service-connected right ankle disability is warranted. The Veteran was afforded a VA right ankle examination in October 2019. The Veteran complained of flare-ups when standing, walking, and climbing ladders. However, the precise extent to which these flare-ups cause additional loss in range of motion was not recorded because the examiner felt that there was no way to estimate additional loss without directly observing the flare-up. The Veteran was afforded another VA right ankle examination in December 2021. The results of this examination are internally inconsistent. The examination report indicates that pain on daily flare-ups limit functional ability involving the right ankle. However, the report goes on to indicate that during flare-ups, the estimated range of motion is 35 degrees of plantar flexion, and 20 degrees of dorsiflexion - the same as the initial range of motion. Such a clear error diminishes the probative value of the examination. As such, the Board finds the October 2019 and December 2021 VA examinations inadequate for the purposes of adjudication. Given the foregoing, the Board finds that remand is warranted to afford the Veteran an additional examination with medical opinion based on full consideration of the Veteran's documented medical history and assertions and supported by clearly-stated rationale. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312. Service Connection 2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right ankle disability 3. Entitlement to service connection for a right knee disability, to include as secondary to service-connected right ankle disability The Veteran contends that service connection is warranted for a left knee and right knee disability, to include as secondary to his service-connected right ankle disability. Specifically, he asserts these disorders are due to shifting his weight onto his left knee due to right ankle pain, which also caused or aggravated his right knee disability. Generally, to establish service connection for a present disability, "the veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a "nexus" or causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Aggravation of a pre-existing condition beyond the natural progression is presumed where the disability increases in severity over the course of service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. This presumption is rebuttable by clear and unmistakable evidence that the increase is attributable to the natural progression of the condition. 38 C.F.R. § 3.306(b). Finally, the Federal Circuit has held that "disability" in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, and pain in the absence of a presently-diagnosed condition can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran was afforded a VA examination of his knees in October 2022. The examiner diagnosed bilateral knee strain as well as degenerative arthritis (other than post-traumatic) of the left knee. The examiner provided negative direct service connection nexus opinions but did not opine on the issue of secondary service connection of the Veteran's knee disabilities. In March 2023, the Board remanded the matter to the AOJ to obtain secondary service connection opinions. In October 2023, the Veteran was afforded another VA examination of his knees. The examiner diagnosed bilateral knee strain as well as degenerative joint disease (DJD) in both knees. In a November 2023 Addendum, the examiner provided negative secondary service connection nexus opinions, concluding that the [right] ankle does not affect any other joints, the Veteran has normal gait and joints do not affect other joints. No other rationale was provided. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the examiner's rationale is conclusory and lacks the sufficient rationale necessary to resolve the appeal. Moreover, the examiner did not appear to consider or address the Veteran's assertions that his knee disabilities may have resulted from having to shift his weight because of the pain in his right ankle. Given the foregoing, the Board finds that remand is warranted to afford the Veteran an additional examination with medical opinion based on full consideration of the Veteran's documented medical history and assertions and supported by clearly-stated rationale. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312; Stegall, 11 Vet. App. at 271. 4. Entitlement to a TDIU The Veteran's TDIU claim is intertwined with his increased rating and service connection claims. Specifically, the evidence of record reflects that since at least July 2012 the Veteran has periods of inability to bear weight on his left knee. The Veteran also indicated in his July 2015 notice of disagreement that he was unable to get up and go to work at times because he was unable to move. Moreover, in correspondence received in December 2018, the Veteran endorsed having bilateral knee problems that included stiffness, swelling, cracking, and slipping motion to the knees resulting in locking up and falling spells, secondary to his chronic pains. Because of the impact of these disabilities on the Veteran's ability to work, the AOJ must readjudicate the Veteran's TDIU claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected right ankle disability, characterized as right fracture of lateral malleolus with chronic synovitis of right ankle. The claims file should be made available to the examiner for review in connection with the examination. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion of the ankle. Additionally, the examiner must include range of motion testing in the following areas: Active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right ankle is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. If the examiner is unable to conduct the required testing or provide the requested estimates, or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner must provide a complete rationale for all the findings and opinions. 2. Schedule the Veteran for a VA examination by an appropriate clinician to answer the following questions: (a) Is the Veteran's left knee condition caused or aggravated beyond its natural progression by his service-connected right ankle disability? (b) Is the Veteran's right knee condition caused or aggravated beyond its natural progression by his service-connected right ankle disability? Prior to opining, the examiner is to review the entire claims record, including the Veteran's statements about the history of his knee conditions. The examiner is asked to specifically consider and address the Veteran's contentions that his knee disabilities may have been caused and/or aggravated by him having to shift his weight due to his right ankle pain. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 3. Readjudicate the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. B. D. WATSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Picard 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.