Citation Nr: 1761196
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 10-08 608 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia

THE ISSUES

1. Entitlement to service connection for a right ankle disability, to include as secondary to the service-connected total left knee arthroplasty with residual scar.

2. Entitlement to a rating in excess of 10 percent prior to October 20, 2015, and in excess of 20 percent thereafter, for the service-connected right knee chondromalacia, to include whether separate ratings are warranted under Diagnostic Codes 5258 and 5099-5019.

REPRESENTATION

Appellant represented by: Virginia Department of Veterans Services

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

A. Adamson, Counsel

INTRODUCTION

The Veteran served on active duty in the U.S. Army from October 1974 to December 1975.

These matters come to the Board of Veterans’ Appeals (Board) on appeal from September 2009 and May 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In March 2016, the Veteran testified during a hearing before the undersigned in Washington, D.C. A transcript of that hearing is within the record before the Board.

In June 2016, the Board issued a decision partially granting and partially denying an increased rating for the Veteran’s service-connected left knee disability, and partially granting and partially denying an increased rating for the service-connected right knee disability. The Board remanded the matter of whether service connection is warranted for a right ankle disability and remanded the matter of whether a total disability rating based upon individual unemployability (TDIU) is warranted. Following the Board’s decision, the Veteran appealed the matter as to the right knee ratings to the Court of Appeals for Veterans Claims (CAVC). The left knee disability rating was not appealed. That issue, therefore, is no longer before the Board.

In May 2017, the Court issued an Order vacating and remanding the right knee rating claim for action in accordance with a Joint Motion for Partial Remand (Joint Motion). Thus, that issue is again before the Board. The Board has recharacterized the issue to reflect all aspects of the matters on appeal as required by the Joint Motion.

Following the remand of the right ankle and TDIU claims, an October 2016 rating decision was issued awarding a TDIU, effective July 31, 2014. The Veteran has not indicated any disagreement with the effective date assigned. Thus, the TDIU claim has been granted in full and is no longer before the Board. The right ankle service connection claim remains on appeal.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.

REMAND

Although the Board sincerely regrets additional delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran’s appeal, so as that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).

Right Knee

In October 2015, the Regional Office issued the most recent supplemental statement of the case (SSOC) readjudicating the rating assigned for the service-connected right knee disability. The evidence listed for review at that time included all evidence considered at the time of the January 2010 SOC, as well as procedural documents, private treatment records, several lay statements, the October 2015 VA examination report and VA treatment records dated through October 26, 2015. Since that time, the AOJ has developed the evidentiary record, to include obtaining over 1,000 pages of VA treatment records dated through July 2016. The issue was not readjudicated by the AOJ following the addition of these records to the file. Thus, the matter must be remanded for such consideration. See 38 C.F.R. § 20.1304 (2017).

Further, the most recent VA examination related to the Veteran’s right knee disability was in October 2015, more than two years ago. Records received since then indeed show ongoing recommendation for right knee surgery, which was noted by the Veteran at his Board hearing. July 2016 VA treatment records show he is not interested in surgery. He, however, continues to seek pain management and care. Considering the severity of his right knee disability and the ongoing recommendation for surgery, the Board finds the October 2015 VA examination to likely be too remote to reflect the current state of the Veteran’s knee disability. VA’s duty to assist includes conducting a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when there is evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Further, the Joint Motion requires an explanation as to whether separate ratings for the right knee are warranted under Diagnostic Codes 5099-5019 and 5258. The updated examination should provide a through report as to the right knee symptoms, which includes clear delineation, should such delineation be possible, between manifestations of the limited motion compensated for under Diagnostic Code 5019 and any symptomatic, semilunar, dislocated cartilage with frequent episodes of locking, pain and effusion, compensated for under Diagnostic Code 5258.

Right Ankle

The Board remanded the matter of whether service connection is warranted for a right ankle disability in June 2016. The remand required an opinion as to whether any disability of the right ankle was caused by, or aggravated by (permanently increased in severity beyond the natural progression) the Veteran’s service-connected left knee disability, or any other service-connected disability. The Veteran underwent VA examination in August 2016. The examiner completed several disability benefits questionnaires (DBQ) and in addition to not addressing all questions asked and erroneously reporting the Veteran’s contention, the information was inconsistent in between the reports and inconsistent with the Veteran’s outpatient treatment records.

First, the examiner reported that the Veteran claims his Tarsal Tunnel Syndrome is related directly to active duty. This is not accurate as he has clearly stated that this claim is asserted on a secondary basis only. See hearing transcript at page 3. Further, in one DBQ, the disability was described as Tarsal Tunnel Syndrome and in another it was stated that there is no evidence of the disability. The examiner also stated that the Tarsal Tunnel Syndrome is not aggravated by the service-connected bilateral knee condition “since gait is normal without additional physical stress/strain brought upon the right ankle.” VA treatment records throughout the pendency of the claim clearly show the Veteran’s use of a cane to ambulate and he is reported as walking with an antalgic gait. See July 2016 VA treatment records. Thus, the rationale used for the negative opinion related to aggravation incorrectly states the Veteran’s medical history. VA treatment records also show the Veteran’s left lower extremity is shorter than the right since his in-service left knee surgery. This is also noted in the November 2009 podiatrist opinion suggesting a possibility that the right foot/ankle disability was caused by the left knee replacement and resultant shorter left limb. The examiner made no mention of this. The examiner also mentioned the diagnosis of status-post release surgery Tarsal Tunnel Syndrome and torn Achilles tendon with normal healed surgical scar, but made no mention of osteoarthritis in the ankle, which is shown within the treatment records and in a prior examination report.

Moreover, the examiner gave no opinion as to whether the service-connected disabilities caused any disability of the right ankle, and gave no opinion related to service-connected disabilities other than the knees. The Veteran is also service-connected for left and right hip strain, thoracolumbar strain, left ankle sprain, radiculopathy of the lower extremities, as well as two non-orthopedic / non-neurological disorders. There was no mention of any of these other service-connected disabilities in the VA examiner’s rationale.

For these reasons, the June 2016 opinion is inadequate and fails to address the questions posed by the Board in June 2016. VA must obtain an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Records

Finally, VA treatment records are within the claims file dated through July 2016. On remand, relevant, ongoing records related to the Veteran’s right lower extremity (knee/ankle/foot) should be associated with the claims file. 38 C.F.R. § 3.159(c)(2) (2017).

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the record all post-July 2016 VA treatment records related to the Veteran’s right lower extremity (knee/ankle/foot). If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e) (2017).

2. Once the record is complete to the extent possible, the Veteran should be afforded a VA examination in order to determine the current severity of his service-connected right knee disability. All pertinent evidence should be made available to and reviewed by the examiner. The examiner must make all findings relative to rating the Veteran’s right knee disability, to include assessing any limitation of motion, as well as any instability and cartilage involvement producing frequent episodes of locking, pain, and effusion into the joint.

The AOJ should ensure that the examiner provides all information required for rating purposes.

3. Once the record is complete to the extent possible, all pertinent evidence of record must be made available to and reviewed by the examiner who conducted the August 2016 examination, if available.

The examiner should identify all current disabilities related to the Veteran’s right ankle, including all residuals of his 2005 Tarsal Tunnel Syndrome release surgery. Once all diagnoses are noted, the examiner should render an opinion on the following questions as to each:

(a) Is it at least as likely as not (50 percent or more) that the Veteran’s service-connected disabilities, including disabilities of the knees, hips, back and legs, caused any current disability of the right ankle, including any residual of the 2005 Tarsal Tunnel Syndrome release surgery or any osteoarthritis present. The examiner should consider both the shortened left leg and the altered gait noted within the Veteran’s outpatient treatment records in the analysis.

(b) Is it at least as likely as not (50 percent or more) that the Veteran’s service-connected disabilities, including disabilities of the knees, hips, back and legs, aggravated (permanently increased in severity beyond the natural progression) any current disability of the right ankle, including any residual of the 2005 Tarsal Tunnel Syndrome release surgery or any osteoarthritis present. The examiner should consider both the shortened left leg and the altered gait noted within the Veteran’s outpatient treatment records in the analysis.

The examiner should provide a well-reasoned rationale supported by the facts as to why the conclusion made was reached.

The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility;” rather, it means the evidence of record is so evenly divided that, in the examiner’s opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

If the prior examiner is unavailable, all pertinent evidence of record should be made available to and reviewed by another health care professional with appropriate expertise who should be requested to provide the required opinions with supporting rationale.

Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion.

4. After completing the above actions, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC), which considers all evidence received since the October 2015 SSOC (right knee) and the February 2017 SSOC (right ankle). An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

_________________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).

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