Citation Nr: 18123965
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 12-32 991
DATE:	August 3, 2018
REMANDED
Entitlement to an initial compensable rating for left knee patellofemoral pain syndrome is remanded.
Entitlement to an initial compensable rating for right knee patellofemoral pain syndrome is remanded. 
Entitlement to an initial rating in excess of 10 percent for lumbar spinal strain is remanded.
Entitlement to an initial compensable rating for hypertension is remanded.
Entitlement to an initial rating in excess of 10 percent for dysthymic disorder prior to June 13, 2011, and in excess of 30 percent thereafter, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from February 2006 to February 2010.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  A travel board hearing was held before the undersigned in October 2016, a transcript of which is of record.  
Of note, an October 2012 rating decision increased the Veteran’s assigned rating for insomnia to 30 percent, effective June 13, 2011.  However, as this is not considered a full grant of the benefit sought by the Veteran in relation to his insomnia rating, the matter is still on appeal.  
1. Entitlement to an initial compensable rating for both right and left knee patellofemoral pain syndrome are remanded
The Veteran contends he is entitled to compensable ratings for his right and left knee patellofemoral pain syndrome.  
In his October 2012 VA Form 9, Substantive Appeal, the Veteran argued that he was entitled to at least a 15 percent rating for each knee.  
At the October 2016 Board hearing he testified that his right knee was worsening, which he believes is because it is compensating for his left knee, which “actually decrease[d]” in pain.  The Veteran stated that squatting had become difficult, he hears cracking in his knees when he stands up, experiences buckling, instability, decreased strength, and swelling.
The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997).  Thus, as the record indicates a potential worsening of the service-connected right and left knee condition over the course of the appeal, and the last VA examination of record is from June 2011 (over 7 years ago), a new examination is needed to reassess the severity of this service-connected disabilities.
2. Entitlement to an initial rating in excess of 10 percent for lumbar spinal strain is remanded
The Veteran also asserts that he is entitled to a rating in excess of 10 percent for his lumbar spine condition.  
In the October 2012 VA Form 9, the Veteran argued that he experiences flare-ups of his spinal condition “quite often” and that he experiences a constant aching pain.  Further, that he believes his lumbar condition impacts his bilateral knee condition.  
At the Veteran’s October 2016 Board hearing he testified that his back pain had increased throughout the years, which has limited his amount of activity and productivity, but requires constant readjustment in order to keep pressure off of it. 
As the record indicates a potential worsening of the service-connected lumbar spine condition over the course of the appeal, and the last VA examination of record is from March 2010 (over 8 years ago), a new examination is needed reassessing the severity of this service-connected disability.  See Caffrey, 6 Vet. App. 377; Snuffer, 10 Vet. App. 400.  The Board notes that the Veteran specifically argued in his October 2012 VA Form 9 that he experiences flare-ups of the spinal condition.  Therefore, on examination pursuant to this remand, the VA examiner should specifically evaluate and discuss the Veteran’s flare-ups of the lumbar spine condition pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).   
3. Entitlement to an initial compensable rating for hypertension is remanded
The Veteran also contends that he is entitled to an initial compensable rating for hypertension.  
In his October 2012 VA Form 9, the Veteran argued that his hypertension is impacted by his service-connected insomnia, which is also worsening.  
At the October 2016 Board hearing the Veteran testified that he had been on water bills for a while but did not see any improvements, aside from gaining weight.  He testified that he monitors his blood pressure at home and typically sees 125 to 145 over 155, but overall believes it may have stabilized.  
In light of the below-discussed remand of insomnia, which the Veteran has argued impacts the severity of his hypertension, the Board finds that the Veteran’s claim for an increased rating for hypertension should also be remanded and provided a contemporaneous examination to assess the severity of the service-connected disability.  See Caffrey, 6 Vet. App. 377; Snuffer, 10 Vet. App. 400; see also Bell v. Derwinski, 2 Vet. App. 611 (1992); see Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).
4. Entitlement to an initial rating in excess of 10 percent for insomnia prior to June 13, 2011, and in excess of 30 percent thereafter, is remanded.
Finally, the Veteran also argues that he is entitled to an initial rating in excess of 10 percent prior to June 13, 2011, and a rating in excess of 30 percent thereafter, for insomnia.  
In the October 2012 VA Form 9, the Veteran argued that his lack of rest impacts every aspect of his life, to include impacting his service-connected hypertension.  Further, that he warrants at least a 65 percent disability rating for his condition.  
At the October 2016 Board hearing the Veteran testified that his insomnia was “more prevalent, more constant,” or impacted his ability to sleep at least three to four times per week.  
As the record indicates a potential worsening of the service-connected insomnia over the course of the appeal, and the last VA examination of record is from July 2012 (over 6 years ago), a new examination is needed reassessing the severity of this service-connected disability.  See Caffrey, 6 Vet. App. 377; Snuffer, 10 Vet. App. 400.  
Further, the Veteran testified during his October 2016 Board hearing that he was last evaluated for all of his conditions around April 2015.  However, the most recent treatment records for any of the Veteran’s claimed conditions are from January 2013.  As such, updated treatment records, specifically those which re-evaluated the Veteran’s claimed conditions in April 2015, must be associated with the file on remand.  See 38 C.F.R. § 3.159(c)(2); see also Bell, 2 Vet. App. 611.

The matters are REMANDED for the following actions:
1. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims.  Also, ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not been obtained.  All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records.  38 C.F.R. § 3.159 (c) and (e). 
2. After all available records have been obtained and associated with the claims file, schedule the Veteran for a VA compensation examination assessing the severity of his bilateral (left and right) knee disabilities and his lower back strain.  His claims file, including a complete copy of this Remand, must be made available to the examiner for review of the history of these disabilities.  
Following review of the evidence of record, the clinical examination results, and the Veteran’s statements, the examiner must conduct any indicated diagnostic tests that are deemed necessary for an accurate assessment, including testing of limitation of flexion and extension, and an analysis of any additional disability due to pain, weakness, premature or excess fatigability, or incoordination, such as during prolonged, repeated use or during “flare ups”.  The examiner should report (in degrees) the point at which pain is objectively recorded.  These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use.
This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing.  The examination report must confirm that all such testing has been done and reflect the results of the testing.  If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so.
The clinician should identify the nature and severity of all manifestations of the Veteran’s bilateral knee disabilities and low back condition.  Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible.  Ensure the requested examination report is responsive to the applicable rating criteria and questions asked.  If not, obtain all necessary additional information.  Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. §4.2. 
3. After all available records have been obtained and associated with the claims file, schedule the Veteran for the appropriate VA compensation examinations to determine the current nature and severity of his service-connected hypertension and insomnia.  The electronic claims file must be made available to the examiner for review in conjunction with the examination.
All pertinent symptomatology and findings must be reported in detail.  All indicated diagnostic tests and studies must be accomplished.  The clinician should identify the nature and severity of all manifestations of the Veteran’s hypertension and insomnia.  Any appropriate DBQ should be filled out for this purpose, if possible.  Ensure the requested examination report is responsive to the applicable rating criteria and questions asked.  If not, obtain all necessary additional information.  Stegall, 11 Vet. App. at 271; 38 C.F.R. §4.2.
 
KEITH W. ALLEN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	LM Stallings, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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