judge_norm: DAVID L WIGHT

condition: eye

text:
Citation Nr: 1722000
Decision Date: 06/14/17    Archive Date: 06/23/17

DOCKET NO.  04-06 026	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUE

Entitlement to an increased initial rating, in excess of 10 percent prior to April 7, 2010, and in excess of 30 percent through January 20, 2016 for a migrainous vertigo disability.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

M. Timbers, Associate Counsel

INTRODUCTION

The Veteran served as a member of the United States Navy, with active duty service from January 1980 through January 1982.

This appeal comes to the Board of Veterans' Appeals ("Board") from an April 2008 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Oakland, California (hereinafter Agency of Original Jurisdiction ("AOJ")).  Thereafter, in a March 2011 rating decision, the AOJ awarded the Veteran an increased initial rating of 30 percent disabling, effective April 8, 2010.

The Veteran's appeal has previously been before the Board.  Most recently, in a November 2015 decision, the Veteran's claim for an increased initial rating for migrainous vertigo was remanded to the AOJ for further development.  A review of the claims file reveals that the Veteran was afforded an updated VA examination and that the AOJ issued a Supplemental Statement of the Case on February 12, 2016.  Therefore, the Board finds the directives of the November 2015 remand were substantially complied with and the Veteran's appeal has been properly returned to the Board for appellate adjudication.  See Stegall v. West, 11 Vet. App. 268 (1998).

During the pendency of this remand, the Board observes the AOJ issued a rating decision in February 2016 which granted the Veteran an increased rating of 50 percent disabling for his migrainous vertigo disability, effective January 20, 2016.  This increased rating represents an award of the full schedular evaluation for this service connected disability from January 20, 2016.  As such, the Veteran's claim on appeal has been reclassified as a claim for an increased rating in excess of 10 percent prior to April 8, 2010 and in excess of 30 percent from April 8, 2010 through January 20, 2016.

This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS").  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

Lastly, the Board observes the Veteran has submitted a claim for service connection of a sleep apnea disability, which has not been fully adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over this claim, and it is referred to the AOJ for appropriate action.  38 C.F.R. � 19.9(b) (2016).

FINDINGS OF FACT

1.  Beginning on and after November 26, 2007, the Veteran's migrainous vertigo disability was manifested by prostrating attacks occurring on an average of once a month.

2.  Prior to April 8, 2010, the service-connected migrainous vertigo disability was not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

CONCLUSIONS OF LAW

1.  The criteria for an increased initial rating of 30 percent, but no greater, for the service-connected migrainous vertigo disability were met beginning on November 26, 2007.  38 U.S.C.A. �� 1155, 5103, 5107 (West 2014); 38 C.F.R. �� 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes 6204, 8100 (2016).

2.  Beginning on and after April 8, 2010, but no sooner, the criteria were met for an increased rating of 50 percent for the service-connected migrainous vertigo disability.  38 U.S.C.A. �� 1155, 5103, 5107 (West 2014); 38 C.F.R. �� 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA Duties to Notify and Assist:

As provided for by the Veterans Claims Assistance Act of 2000 ("VCAA"), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2016).  The VCAA required notice provisions were accomplished by numerous letters, including those dated in in February 2002, May 2008, and August 2012, which informed the Veteran of the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that the VA will seek to provide, and the information and evidence the Veteran is expected to provide.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The letters also informed the Veteran how disability ratings and effective dates are established.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

Pertinent to VA's duty to assist, the record also reflects that the AOJ has undertaken appropriate actions to obtain all relevant evidence material to this claim.  The evidentiary file contains the Veteran's service treatment records ("STRs"), VA treatment records, records from the Social Security Administration, and all identified and available private treatment records.  For his part, the Veteran has submitted personal statements, letters from his family and friends, and arguments from his representative.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims.

The Veteran was additionally afforded VA examinations in July 2005, November 2007, March 2010, April 2010, September 2015, and January 2016  in connection with the claim addressed herein.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. � 5103A(d)(2); 38 C.F.R. � 3.159(c)(4).  The Board finds these VA examinations and the opinions provided are thorough, supported by a clear rationale, based on a review of the claims folder, and supported by the clinical evidence of record.  Additionally, these VA examiners considered the Veteran's lay assertions in reaching their conclusion.  Therefore, the Board finds that these medical opinions are adequate to decide the claims on appeal.

Therefore, the Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate.  Washington v. Nicolson, 21 Vet. App. 191 (2007).  Moreover, for the increased rating issues on appeal, neither the Veteran, nor his representative, have advanced any procedural arguments in relation to VA's duties to notify and assist.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . .").  For these reasons, the Board concludes that the VA has fulfilled its duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.

Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Governing Laws and Regulations for Entitlement to an Increased Rating:

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities ("Rating Schedule"), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. � 4.1 (2016).  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. � 4.10.

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. � 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. �� 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.   38 C.F.R. � 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

That being the relevant generalized law to increased ratings, the Board will now discuss the specific code under which the Veteran's disability will be analyzed.  Notably, the Veteran's migrainous vertigo disability was initially rated under Diagnostic Code 6240 for peripheral vestibular disorders.  See April 2008 Rating Decision.  Under this Diagnostic Code, the Veteran's migrainous vertigo disability was assigned a 10 percent disability rating for symptoms of occasional dizziness.  In a subsequent March 2011 Rating Decision, the AOJ assigned an increased disability rating under Diagnostic Code 8100, for migraine headache disabilities.

Based upon a review of the veteran's longitudinal medical records and with consideration of the totality of his reported symptoms, the Board finds that Diagnostic Code 8100 remains the most appropriate code to assess the severity of the Veteran's migrainous vertigo disability.  The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case."  Butts v Brown, 5 Vet. App. 532, 538 (1993).  One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Therefore, the Board will evaluate the Veteran's disability, for the entire period on appeal, under Diagnostic Code 8100.

Under the terms of Diagnostic Code 8100, a 10 percent evaluation is assigned for migraines with characteristic prostrating attacks averaging one in two months over the last several months.  A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months.  A 50 percent evaluation, the highest available under Diagnostic Code 8100, is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. � 4.124a.

The rating criteria do not define "prostrating" as used in Diagnostic Code 8100.  By way of reference, the Board notes that according to WEBSTER'S NEW COLLEGE DICTIONARY 909 (3d Ed. 2008), "prostrate" is defined as "physically or emotionally exhausted."  "Incapacitated" is listed as a synonym.  A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness."

Similarly, the regulations provide no clarification as to the meaning of the phrase "productive of severe economic inadaptability."  The Court, however, has interpreted the phrase to mean "producing" or "capable of producing" economic inadaptability.  See Pierce v. Principi, 18 Vet. App. 440, 445 (2004).

Having reviewed the evidentiary record thoroughly, and resolving all doubt in the Veteran's favor, the Board finds the Veteran is entitled to an increased initial rating of 30 percent for his service-connected migrainous vertigo disability, effective November 26, 2007.  Thereafter, the Board finds the Veteran's disability more nearly approximates an increased 50 percent disability rating beginning on and after April 8, 2010.

i.  Entitlement to an increased 30 percent disability evaluation beginning on November 26, 2007.

The Board finds the evidence and medical opinion evidence support the award of an increased 30 percent evaluation as of November 26, 2007, the date of the Veteran's VA examination.  Notably, this examination was the first documented time where the Veteran was found to have "prostrating" migraines occurring on average once a month over the last several months.  As noted above, the Rating Schedule requires a migraine disability to be symptomatic of prostrating headaches in order to warrant an increased rating of 30 percent.

This November 2007 VA examination is the earliest possible date on which to award the Veteran an increased initial disability evaluation.  Prior to this period, the Veteran's medical records showed sparse and non-descript reports of headaches which the Veteran subjectively attributed to sinus pressure and/or side-effects of his medications.  For example, during a September 2004 physical examination, the Veteran reported an occurrence of moderate, infrequent headaches as a side-effect of his medication Paxil.  During a December 2005 appointment, the veteran reported recent occurrences of headaches due to sinus pressure.  These early VA treatment records additionally note that the Veteran's complains of headaches were quickly resolved with changes to his medications, specifically Paxil and his allergy medications.  As such, the Board finds no factual basis on which to award an earlier increased rating for his migrainous vertigo disability.

Also of significance, the Board observes the VA examiner who conducted the November 2007 examination was the same physician who performed the April 2010 VA examination.  Following this April 2010 VA examination, the AOJ cited the findings and conclusions as evidence to support the award of an increased disability rating of 30 percent.  Closer inspection of the April 2010 VA examination reveals that the examiner cited to her findings from the November 2007 examination to describe the symptoms of the Veteran's previously reported flare-ups and prostrating headaches.

The Board is aware the Veteran reported more frequent headaches during this period.  For example, during the November 2007 VA examination the Veteran reported he experienced less severe, i.e. non-prostrating, headaches, more regularly throughout the week and month.  Although the Veteran reported more than one headache per month, there is no indication all the Veteran's headaches rose to the severity of a prostrating headache.  Specifically, the Veteran reported he experiences a headache "a few times per week and on occasion it is a daily headache."  The Veteran was unable to quantify how often he experiences a flare-up during a given week or during a typical month.

As a lay person, the Veteran is competent to report symptoms such as the length, severity, and frequency of his headaches, as these symptoms require only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Therefore, the Board has considered the Veteran's lay statements regarding the length and severity of his headaches.  However, the Board finds the Veteran's lack of specificity regarding the number of prostrating headaches during this period to be suggestive that they were not so numerous that they occurred more than once per month, averaged over a several month period.

Furthermore, the Board finds the Veteran's symptoms were not productive or capable of producing severe economic inadaptability during this time period.  During the November 2007 examination, the examiner observed the Veteran is able to independently and routinely attend to his regular daily activities and chores.  The Board observes the Veteran was not employed during this period due to disability leave from his prior employer for several musculoskeletal injuries.  However, during the subsequent April 2010 VA examination, the same examiner concluded the Veteran overall disability picture during the year prior to April 2010 did not approximate symptoms which were productive of or capable of producing severe economic inadaptability.  The Board finds this conclusion to be persuasive, as it was based upon a comprehensive examination of the Veteran, his medical history, and the veteran's subjective reports of symptoms and frequency of flare-ups.

In conclusion, and after resolving all doubt in the Veteran's favor, the Board finds the credible objective and subjective evidence of record supports the award of an increased initial 30 percent disability rating beginning on November 26, 2007.

ii.  Entitlement to an increased disability evaluation of 50 percent beginning on and after April 8, 2010:

The Board again relies upon the conclusions of the April 2010 VA examiner to find that the Veteran's overall disability picture more nearly approximated an increased 50 percent disability evaluation beginning on and after April 8, 2010.  Notably, during this examination, the examiner concluded the Veteran's migrainous disability would reduce his ability to work and maintain regular attendance during periods of exacerbated symptoms.  Specifically, the examiner concluded the Veteran would be capable of at least "part-time administrative work," when he was not experiencing an "acute exacerbation" of his migrainous vertigo disability.

Although the April 2010 VA examiner's conclusion does not state in explicit terms that the Veteran's migrainous vertigo disability is productive of severe economic inadaptability, the Board finds it is implied.  Specifically, the examiner concluded the Veteran would be of "part-time administrative work," but only when he was not experiencing a flare-ups of his migraine symptoms.  A favorable reading of this conclusion reveals that the Veteran's migrainous vertigo disability would be capable of producing severe economic inadaptability.

However, the Board finds that the April 2010 VA examination is the earliest time the evidentiary record supports a finding that the Veteran's migrainous vertigo disability could be productive of severe economic inadaptability.  Significantly, the April 2010 VA examiner observed that the Veteran's symptoms and severity of the migrainous vertigo disability had "generally worsened" since her prior November 2007 examination.  This observation was based upon a review of the Veteran's medical records, a physical examination of the Veteran, and with consideration of his symptoms and frequency of prostrating attacks.  During the earlier November 2007 VA examination, the Veteran was unable to report prostrating attacks that occurred on average more than once per month.  In contrast, during the April 2010 VA examination the Veteran described prostrating attacks which occurred, on average, approximately three to four times per month.

A closer reading of the Veteran's subjective report of symptoms reveals that even these periods of flare-ups varied in duration and severity.  Per the Veteran's own reported history some of these exacerbated symptoms lasted 15 minutes, while others resulted in him having to lay in bed all day.  However, affording the Veteran all benefit of doubt, the Board finds his symptoms were capable of producing severe economic inadaptability beginning on and after April 8, 2010.
Therefore, after resolving all doubt in the Veteran's favor, the Board finds the Veteran is entitled to an increased disability rating of 50 percent beginning on and after April 8, 2010.  As discussed in greater detail above, April 8, 2010 is the earliest date for which the evidence supports an increased rating of 50 percent disabling.  Both the objective medical evidence and the Veteran's subjective lay reports do not suggest the overall disability picture more nearly approximated a 50 percent disability evaluation prior to April 8, 2010.

	iii.  Entitlement to an Extraschedular Evaluation:

The Board has additionally considered whether the evidence of record warrants a referral for an extraschedular evaluation.  An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. � 3.321(b)(1) (2016); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

The determination of whether a claimant is entitled to an extraschedular rating under � 3.321(b)(1) is a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008).   If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted.  Id.  See also 38 C.F.R. � 3.321(b)(1).   Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating.  See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996).

Having reviewed this case thoroughly, and with due application of the substantive standards for the assignment of an extraschedular rating under 38 C.F.R. � 3.321(b)(1), the Board finds that no higher rating is warranted on an extraschedular basis.  The Board does not find that the longitudinal evidence of record shows such an exceptional disability picture that the available schedular evaluation for the service-connected migrainous vertigo disability is inadequate or impractical for evaluating a disability of the severity experienced by the Veteran.  Rather, a comparison between the level of severity and symptomatology of the Veteran's assigned evaluation with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.

The Board finds the Rating Schedule, and Diagnostic Code 8100, allow for consideration of the totality of symptoms alleged and described by the Veteran.  As noted above, Diagnostic Code 8100 allows for ratings based on the frequency and severity of "prostrating" attacks.  There is no set criterion of symptoms the Board is limited to consider.  Rather, Diagnostic Code allows for the consideration of all symptoms, including dizziness, vomiting, nausea, photosensitivity, and severity of pain.  Diagnostic Code 8100 is further tailored to a veteran's specific tolerance for such symptoms because it is based upon the frequency of prostrating attacks.  Therefore, the Board finds there are no symptoms experienced by the veteran which are not described or accounted for in the application of Diagnostic Code 8100.

The Board further finds that any allegation or report of missed time from work due to the Veteran's migrainous vertigo disability is fully addressed by the assigned schedular criteria.  VA regulations specify that the assignment of a schedular disability evaluation inherently contemplates the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  As such, factors such as requiring periodic medical attention are clearly contemplated in the rating schedule and by the assignment of the staged ratings discussed above.  Furthermore, the Veteran was awarded entitlement to a total disability based upon individual unemployability beginning on and after April 8, 2010, based in part on his migrainous vertigo disability.  See March 2011 Rating Decision.

Lastly, the Board notes that, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  In this case, however, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms that have not been attributed to a specific service-connected disability.  Specifically, neither the Veteran nor his representative have identified any other symptom resulting from the combined effect of the Veteran's service-connected disabilities which are not contemplated by in the rating criteria and assigned schedular evaluations for those disabilities.

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected right knee disability under the provisions of 38 C.F.R. � 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).

	(CONTINUED ON NEXT PAGE)

ORDER

Subject to the provisions governing the award of monetary benefits, an increased rating of 30 percent for the service-connected migrainous vertigo disability is granted effective November 26, 2007.

Subject to the provisions governing the award of monetary benefits, an increased rating of 50 percent for the service-connected migrainous vertigo disability is granted effective April 8, 2010.

____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: CYNTHIA M BRUCE

disposition: remanded

text: 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.A. §§ 5109B, 7112 (West 2014).

text:
Citation Nr: 1724000
Decision Date: 06/26/17    Archive Date: 07/10/17

DOCKET NO.  13-00 214	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUE

Entitlement to service connection for hypertension.

REPRESENTATION

Veteran represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

R. Kettler, Associate Counsel

INTRODUCTION

The Veteran served honorably on active duty from September 1953 to September 1955 and from December 1990 to February 1991.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.

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

REMAND

In response to a May 2017 hearing clarification letter, the Veteran requested a Board hearing in June 2017, prior to a determination of his claim on the merits.  38 C.F.R. � 20.904 (2016).  The Board finds that a remand is required to fulfill the Veteran's request for a new hearing.  See 38 C.F.R. � 20.704 (2016).

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a hearing before a Veterans Law Judge.  Notice of the scheduled hearing must be sent to both the Veteran and his representative.  After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures.

The Veteran has the right to submit additional evidence and argument on the matter or 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.A. �� 5109B, 7112 (West 2014).

_________________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), 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) (2016).


judge_norm: S C KREMBS

text:
Citation Nr: 1725000
Decision Date: 06/30/17    Archive Date: 07/10/17

DOCKET NO.  13-25 633	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington

THE ISSUE

Entitlement to an increased rating for the service-connected fungal infections of the feet, groin, hands, and face (skin condition), currently rated as 10 percent disabling prior to July 2, 2014, and as 30 percent disabling from that date.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

The Veteran and his wife

ATTORNEY FOR THE BOARD

S. Spitzer, Associate Counsel
INTRODUCTION

The Veteran served on active duty from September 1976 to September 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

A January 2015 decision review officer decision granted a 30 percent rating for the skin condition effective from July 2, 2014.  However, as that increase did not represent a total grant of the benefits sought on appeal, the claim of entitlement to an increased rating for the skin condition remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

In January 2017 the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.

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

REMAND

The Veteran testified that his skin condition has worsened since he was last afforded a VA examination in July 2014.  Specifically, he explained that his skin condition has spread to his face, and that his thumbnail and toenail were overcome by fungus in the last year.  Given that it has been nearly three years since the last VA examination, and the Veteran's condition may have worsened since that time, a new VA examination should be scheduled.

Additionally, updated private dermatological records, including from his dermatologist, R. S., should be requested.

Accordingly, the case is REMANDED for the following actions:

1. Ask the Veteran to identify any private medical providers who have treated him for his skin condition since November 2014, to include R. S.  After securing any necessary releases, the AOJ should request any relevant records.  If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such.

2. Schedule the Veteran for a VA skin examination to ascertain and evaluate the nature and extent of his service-connected skin condition.  The claims file should be made available to and be reviewed by the examiner.

Specifically, the VA examiner should address the following:

a. Identify all pathology related to the Veteran's service-connected skin condition.  Conduct all necessary tests and elicit findings in response to the applicable criteria.

b. Specify the location and extent of the skin condition in terms of a percentage of the body and the frequency that systemic therapy have been required during the past 12-month period.

Also, take into account any flare-ups the Veteran may have experienced during the year and discuss whether the Veteran's skin condition is productive of any additional functional impairment.

The examiner is to review and consider the May 2011 and July 2014 VA examination reports.  A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

3. After completing the requested actions and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal.  If the benefit   sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order.

The Veteran has the right to submit additional evidence and argument on the matter 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.S. �� 5109B, 7112 (LexisNexis 2017).

_________________________________________________
S. C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.S. � 7252 (LexisNexis 2017), 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) (2016).


judge_norm: M H HAWLEY

disposition: denied

benefit: healthcare

text:
Citation Nr: 1726000
Decision Date: 07/07/17    Archive Date: 07/18/17

DOCKET NO.  17-22 829	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Bay Pines, Florida

THE ISSUE

Entitlement to payment or reimbursement for the cost of unauthorized medical treatment provided by Mease Dunedin Hospital on August 26, 2016.

ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel

INTRODUCTION

The Veteran had active military service from February 1943 to February 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 decision issued by the Department of Veterans Affairs (VA) Medical Center in Bay Pines, Florida.  The Veteran submitted a notice of disagreement in December 2016 and subsequently perfected an appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2016).  38 U.S.C.A. � 7107(a)(2) (West 2014).

FINDINGS OF FACT

1.  The Veteran is service-connected for facial scars, which is currently rated as 10 percent disabling.  His combined disability rating is 10 percent.

2.  On August 26, 2016, the Veteran visited the Emergency Department at the Mease Dunedin Hospital to resolve an issue regarding a recently placed foley catheter.  He indicated that he did not want to drive to a local VA medical facility.

3.  Presentation to the non-VA emergency room was on a weekday, during business hours, when a VA medical facility was feasibly available and an attempt to use them beforehand would have been considered reasonable by a prudent layperson.

CONCLUSION OF LAW

The criteria for entitlement to payment or reimbursement for the cost of unauthorized medical expenses incurred on August 26, 2016 at the Mease Dunedin Hospital have not been met.  38 U.S.C.A. �� 1703(a), 1725, 1728, 5107 (West 2014); 38 C.F.R. �� 17.52(a), 17.120, 17.1000-1008 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to this claim, because this case concerns a legal determination of whether the Veteran is entitled to reimbursement for unauthorized private medical expenses under 38 U.S.C.A. �� 1725  or 1728.  See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (holding that the provisions of the VCAA are not applicable to statutes and regulations that concern special provisions relating to VA benefits, and those statutes and regulations contain their own notice provisions).

Nevertheless, the Board has reviewed the case for purposes of ascertaining that the Veteran has had a fair opportunity to present arguments and evidence in support of his claim for reimbursement of medical expenses.  Specifically, a November 2016 letter explained the criteria under which payment could be made for non-VA care.  This letter invited the Veteran to submit or identify relevant evidence.  Additionally, it appears that all relevant medical records have been associated with the Veteran's claims folder.  Therefore, the Board is satisfied that all relevant facts regarding the issue on appeal being addressed herein have been properly developed and no further assistance to the Veteran is required to comply with VA's duties to notify or assist.

II.  Factual Background

The facts of this case may be briefly summarized.  On August 26, 2016, the Veteran sought treatment from the Emergency Department at the Mease Dunedin Hospital regarding a recently placed foley catheter.  He reported an inability to tolerate the catheter, because it was irritating his bladder.

The Veteran subsequently sought reimbursement for his medical expenses and his claim was denied in November 2016.  In February 2017, VA medical personnel reviewed the record and concluded that the Veteran's medical situation on August 26 was non-emergent, a VA medical facility was feasibly available (due to the Veteran visiting the non-VA emergency room on a weekday, during business hours), and an attempt to use a VA medical facility beforehand would have been considered reasonable by a prudent layperson.  Further, the record indicated that the Veteran told the nurse that he did not want to drive to the VA hospital.  On basis of this review, the Bay Pines Medical Center upheld the denial of reimbursement.

The Veteran has subsequently argued the high cost of the emergency room visit.  However, the Board notes that VA does not have control over what a non-VA medical facility charges for care.
III.  Payment or Reimbursement of Unauthorized Medical Expenses

In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized in advance by VA.  38 U.S.C.A. � 1703(a); 38 C.F.R. � 17.54; see also Malone v. Gober, 10 Vet. App. 539 (1997).  In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission.  38 C.F.R. � 17.54.  This is a factual, not a medical, determination.  Similes v. Brown, 6 Vet. App. 555 (1994).  If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services.

In this case, the Veteran does not claim and the record does not show that he sought and obtained prior proper authorization for VA payment of the emergency room services incurred on August 26, 2016.  Not only has the Veteran's medical situation on August 26, 2016 been determined to be non-emergent, but VA was not notified of his visit until the non-VA facility filed a claim seeking payment for services rendered.  See March 2017 SOC.  Accordingly, the Board finds that prior authorization for the emergency room services received was not obtained pursuant to 38 C.F.R. � 17.54, and that payment is not warranted for expenses incurred in connection with that treatment under 38 U.S.C.A. � 1703 (a).

When a Veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment; specifically, 38 U.S.C.A. �� 1725 and 1728.  Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability, where 38 U.S.C.A. � 1728 is generally applicable when treatment pertains to a service-connected disability, and � 1725 is generally applicable when treatment pertains to a non-service-connected disability.

Under 38 U.S.C.A. � 1728, there is a three-prong test for meeting the requirements of entitlement to payment or reimbursement for unauthorized medical expenses.  Failure to satisfy any of these three statutory requirements precludes VA from paying unauthorized medical expenses incurred at a private facility.  See Zimick v. West, 11 Vet. App. 45, 49 (1998); see also Malone, 10 Vet. App. at 542 (1997).

First, the Veteran must receive care for: (1) an adjudicated service-connected disability; (2) a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability; (3) any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability; or (4) any illness, injury or dental condition in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in Sec. 17.47(i)(2). 38 C.F.R. � 17.120 (a).

Second, the services must be rendered in a medical emergency of such nature that delay would have been hazardous to life or health.  38 C.F.R. � 17.120 (b).

Third, no VA or other federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.  38 C.F.R. � 17.120 (c).

After a review of all the evidence of record, the Board finds that the Veteran is not eligible for payment or reimbursement under 38 U.S.C.A. � 1728.  At the time of the hospitalization, the Veteran was service-connected for facial scars, which is not related to the non-VA care he received.  The Veteran does not have a total disability that is permanent in nature, and was not participating in a rehabilitation program under 38 C.F.R. Chapter 31.  The Veteran has not contested these facts.

Payment or reimbursement for emergency services for nonservice-connected conditions from non-VA facilities may be authorized under 38 U.S.C.A. � 1725 and 38 C.F.R. �� 17.1000-1008.  To be eligible for reimbursement under this authority, the Veteran has to satisfy all of the following conditions: (a) the emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (b) the claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health; (c) a VA or other federal facility/provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; (d) at the time the emergency treatment was furnished, the Veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C.A. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (e) the Veteran is financially liable to the provider of emergency treatment for that treatment; (f) the Veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment;(g) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the Veteran or provider against a third party for payment of such treatment; and (h) the Veteran is not eligible for reimbursement under 38 U.S.C.A. � 1728 for the emergency treatment provided.

These criteria are conjunctive, not disjunctive; thus, all criteria must be met.  See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means all of the conditions listed in the provision must be met).

As noted above, the Veteran is service-connected for facial scars, which is currently rated as 10 percent disabling.  As there is no evidence that his service-connected disability is related to the reason he sought non-VA treatment on August 26, 2016, 38 U.S.C.A. � 1725 is applicable here.

The Board notes that the law provides for a presumption of regularity with regard to processes and procedures throughout the VA administrative process.  See generally, Marsh v. Nicholson, 19 Vet. App. 381, 386-87 (2005); Crain v. Principi, 17 Vet. App. 182, 186 (2003); Redding v. West, 13 Vet. App. 512, 515 (2000).  This presumption of regularity entitles the Board to rely on the summary of evidence indicated by the Bay Pines VA Healthcare Systems in making its decision.  Yet, the Board recognizes that this presumption is not absolute and may be rebutted by the submission of "clear evidence to the contrary."  Warfield v. Gober, 10 Vet. App. 483, 486 (1997).  However, no such evidence has been received in this case.

Even assuming, without deciding, that all of the other statutory requirements of 38 C.F.R. � 17.1002 are met, the Board finds that the Veteran does not meet the requirement of subsection (c), which provides that VA or other Federal facility or provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson.

As discussed above, the Mease Dunedin Hospital records show that the Veteran sought treatment from the Emergency Department regarding a recently placed foley catheter that was irritating his bladder.  Hospital records show that on a scale of 1 to 10, the Veteran reported a pain level of 0 on August 26.  Further, the records reflect that he visited the non-VA emergency room on a weekday, during business hours, and told the nurse that he did not want to drive to the VA hospital.  Given the non-emergent nature of the Veteran's medical situation and the readily available VA facilities within the state of Florida, the Board concludes that a prudent layperson would not consider an attempt to use a VA facility beforehand as unreasonable.

The Board also notes that the February 2017 review performed by VA medical personnel supports the Board's findings in this matter.  The reviewing nurse's summary of the treatment received by the Veteran on August 26, 2016 reflects consideration of the available medical records.  Based on this review, the physician concluded that Veteran's medical situation was non-emergent and a VA medical facility was feasibly available and recommended upholding the previous denial.

Although the Board is sympathetic to the Veteran's contentions, the law does not provide for equitable relief in this situation.  Reimbursements for unauthorized medical expenses cover only specific factual scenarios, which are restricted to emergency services where VA treatment is not feasibly available.  The Board has no authority to disregard these requirements.  As such, the Board is compelled to conclude that, given the circumstances discussed above, alternative VA treatment was feasibly available and an attempt to seek VA treatment beforehand would have been considered reasonable by a prudent layperson.  Thus, the claim must be denied.  38 U.S.C.A. � 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

ORDER

Entitlement to payment or reimbursement for the cost of unauthorized medical treatment provided by Mease Dunedin Hospital on August 26, 2016 is denied.

____________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: MICHELLE L KANE

text:
Citation Nr: 1727000
Decision Date: 07/13/17    Archive Date: 07/25/17

DOCKET NO.  13-24 835	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to an initial rating greater than 20 percent for service-connected lumbar spine osteoarthritis.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse

ATTORNEY FOR THE BOARD

A. Parsons, Associate Counsel

INTRODUCTION

The Veteran served on active duty from March 1962 through March 1965.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran appeared before the undersigned Veterans Law Judge (VLJ) in an October 2016 videoconference hearing.  A transcript is of record.

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

REMAND

The Veteran averred in his October 2016 videoconference hearing that his lumbar spine osteoarthritis is worse than what is reflected by a 20 percent rating.  The Veteran last underwent a VA examination in January 2011, over six years ago.  Therefore, the Veteran should be afforded a VA examination to evaluate the current severity of his lumbar spine osteoarthritis.

Accordingly, the case is REMANDED for the following action:

1. Obtain all relevant VA treatment records from the Bay Pines VAMC and associated outpatient clinics from March 2013 to the present.

2. Schedule the Veteran for a VA examination to evaluate the current severity of his lumbar spine osteoarthritis.

3. Then, readjudicate the claim, and provide the Veteran a Supplemental Statement of the Case if the claim remains denied.

The appellant has the right to submit additional evidence and argument on the matter 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.A. �� 5109B, 7112 (West 2014).

_________________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), 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) (2016).


judge_norm: KRISTI L GUNN

condition: cancer

text:
Citation Nr: 1728000
Decision Date: 07/18/17    Archive Date: 07/27/17

DOCKET NO.  08-35 273	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUE

Entitlement to a separate evaluation for non-genitourinary residuals of prostate cancer, including depressed mood, irritability, fatigue and lack of stamina/energy.

WITNESS AT HEARING ON APPEAL

The Veteran and his spouse

ATTORNEY FOR THE BOARD

C.A. Skow, Counsel

INTRODUCTION

The Veteran served on active duty from June 1968 to June 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In April 2011, the Veteran and his spouse testified in support of this claim during a hearing held before the undersigned Veterans Law Judge.

In March 2013, the Board bifurcated the issues of entitlement to an evaluation in excess of 20 percent for genitourinary residuals of prostate cancer, from August 1, 2007, and entitlement to a separate evaluation for non-genitourinary residuals of prostate cancer including depressed mood, irritability, fatigue and lack of stamina/energy.  At that time, the Board granted a 40 percent evaluation for genitourinary residuals of prostate cancer and remanded the issue of entitlement to a separate evaluation for non-genitourinary residuals of prostate cancer.

In November 2016, the Board again remanded the appeal for additional development.

FINDING OF FACT

Non-genitourinary residuals of prostate cancer, including depressed mood, irritability, fatigue and lack of stamina/energy are not shown during this appeal.

CONCLUSION OF LAW

The criteria for establishing a separate disability evaluation for non-genitourinary residuals of prostate cancer, including depressed mood, irritability, fatigue and lack of stamina/energy, are not met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. � 3.310, Part 4 (2016).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).

VA's duty to notify has been met.  The Veteran has not alleged prejudice with regard to notice.  The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."  See 38 U.S.C.A. �� 5102, 5103, 5103A (West 2014); 38 C.F.R. � 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA also met its duty assist the Veteran.  VA obtained the all relevant medical treatment records identified by the Veteran and obtained VA medical opinions on his behalf.  Also, VA afforded the Veteran with a hearing in this matter.  It is noted that, in April 2011, the Board requested a medical expert opinion from the Veterans Health Administration (VHA), which was completed in June 2012.  In August 2012, VA provided the Veteran a copy of the opinion and afforded him the opportunity to submit additional evidence and argument.

It is noted that the Veteran's claim was remanded by the Board for additional development.  The requested actions were completed.  Thus, the Board finds substantial compliance with the requirements articulated in the Board's prior remand decision.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claim; the Board is also unaware of any such evidence.
Accordingly, the Board will address the merits of the claim.

II.  Entitlement to a Separate Evaluation for Non-Genitourinary Residuals of Prostate Cancer

The Veteran seeks a separate evaluation for non-genitourinary residuals of prostate cancer, including depressed mood, irritability, fatigue and lack of stamina/energy.

Legal Considerations

In general, all service-connected disabilities, including those arising from a single disease entity, are rated separately.  38 C.F.R. � 4.25.  See also, Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).  In this vein, except as provided in 38 C.F.R. � 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be compensated.  38 C.F.R. � 3.310.

However, the existence of a current disability is the cornerstone of a claim for VA disability compensation.  See 38 U.S.C.A. �� 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997).  In the absence of proof of a present disability due to disease or injury, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Symptoms alone, without a diagnosed or identifiable underlying malady or condition, are not a disability within the meaning of the applicable legislation.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom.

Facts & Analysis

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a separate evaluation for non-genitourinary residuals of prostate cancer, including depressed mood, irritability, fatigue and lack of stamina/energy.  The more persuasive evidence of record does not show non-genitourinary residuals of prostate cancer, including depressed mood, irritability, fatigue and lack of stamina/energy.
The Board accepts that the Veteran is competent to report his symptoms, the onset of those symptoms, and treatment.  Layno, supra.  See also Falzone v. Brown, 8 Vet.App. 398, 405 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, the Board finds the Veteran is not competent to diagnose himself with having disability as a residual of prostate cancer.  Therefore, to the extent that the Veteran's opines that he has depressed mood, irritability, fatigue and lack of stamina/energy as a residual of prostate cancer, to include treatment, the Board finds that this has no probative value as he lacks the requisite medical expertise to offer a competent opinion in this matter and because the etiology is not susceptible to lay observation, unlike a broken leg.

The Board has reviewed the medical opinions addressing this matter.  The credibility and weight to be attached to medical opinions are within the Board's province as finder of fact.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether or not, and the extent to which, the prior clinical records and other evidence were reviewed.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).

Specifically, the Board has considered the May 2006 VA examination report showing that residuals of the Veteran's prostate cancer included "memory loss, inappropriate behavior, poor social interactions, lack of stamina, weakness or fatigue, and pain."  However, the Board finds that this medical conclusion has diminished probative value as (1) it appears to be predicated on the self-report of the Veteran in the context of describing the impact of his prostate cancer on his occupational functioning; (2) it is not supported by clinical findings obtained on this examination-which was a genitourinary exam, not psychiatric; (3) it does not reference any other clinical findings in the record; and (4) it is bereft of any explanation linking the cited residual symptoms to the Veteran's prostate cancer.  See Sklar v. Brown, 5 Vet. App. 140 (1993) (the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion).

The Board further considered the June 2012 VA medical expert opinion by a urologist that the Veteran's symptoms could be residuals from his prostate cancer.  Specifically, he states that:

[L]ack of stamina, fatigue, and weakness can all be a result of/or exacerbated by poor sleep caused by nocturnal incontinence and nocturnal frequency of urination.  If [the Veteran] has been started on androgen deprivation (I do not have records more recent than June 2010) side effects include depressed mood, irritability, and lack of energy.  Therefore it is reasonable to conclude that symptoms related to fatigue and lack of stamina could be residuals from his prostate cancer treatment.

The Board finds that this opinion has no probative value.  The opinion is wholly speculative since the use of the word "can" also implies "cannot".  See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board's decision that a disability was not incurred in service where even the medical evidence favorable to the appellant's claim did little more than suggest the possibility that the veteran's illness might have been caused by his wartime radiation exposure).  Moreover, although the opinion theorizes that androgen deprivation for prostate cancer could be responsible for the Veteran's symptoms, the record shows that the Veteran did not undergo this type of therapy and the medical provider of the VHA opinion acknowledged that he did not know whether the Veteran had had this type of therapy.  Notably, a VA medical opinion dated in March 2017 reflects that a review of the record disclosed no androgen deprivation treatment for prostate cancer.

VA medical opinions dated in July 2014 and March 2017 are unfavorable.  Report of VA mental disorders examination dated in July 2014 reflects a diagnosis for "unspecified depressive disorder" with minimal symptoms and partially in remission; it was noted that he had problems with his primary support group and financial stressors.  At this time, the Veteran denied significant depressed mood and his wife noted that he "has pretty good spirits."  The examiner stated that "It appears less likely as not that the Veteran's history of depression is fully attributable to prostate cancer," in view of the current examination findings and medical history to include that the Veteran had depressed mood in 2000 in the context of substance abuse.

Likewise, a March 2017 VA medical opinion by a physician shows that it is less likely than not that the claimed symptoms are related to prostate cancer as there is no underlying diagnosis and the symptoms are reported to be intermittent in nature, based on this provider's review of the July 2014 clinical findings and the claims folder; also, the physician found no indication that the claimed symptoms were attributable to any separate disorder.  The physician explained that the medical evidence actually showed no indication of lack of stamina, significant weakness/fatigue or depressed mood-noting that, on VA examination in June 2014, the Veteran indicated that his mood was "good."  The physician consulted with the mental health provider that completed the 2014 VA examination who explained that, although the Veteran spent a lot time in his room and being alone, this was not itself indicative of any abnormal mental health pathology.  The March 2017 VA medical opinion reflects a comprehensive review and consideration of the pertinent medical history and clinical evidence.

In this case, the Board assigns greater probative value to the July 2014 and March 2017 medical opinions because these were prepared after review of the pertinent medical evidence and they include a rationale for the opinions expressed.  Although the July 2014 VA medical opinion did not address the theory of androgen deprivation therapy (as noted in the Board's prior remand), the Board finds that the opinion is nonetheless probative on the matters addressed therein given that the subsequently developed record shows that the Veteran did not undergo androgen deprivation therapy for prostate cancer.

Also, apart from depressive disorder shown on VA examination dated in July 2014, the Board observes that there is no competent evidence in the record of any diagnosed or identifiable underlying malady or condition to account for the Veteran's complaints/symptoms of irritability, fatigue and lack of stamina/energy.  Thus, the Board finds that these symptoms alone or individually are not a disability within the meaning of the applicable legislation.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom.  To the extent that he reports that they are attributable to prostate cancer (including treatment), he is not competent to opine on such as he lacks the requisite medical expertise and because it is not susceptible to lay observation.  Jandreau, supra.

With regard to unspecified depressive disorder diagnosed on VA examination in 2014, this has not been attributed to prostate cancer by competent evidence.  To the extent that the 2014 VA examiner commented that neurocognitive impairment "is unable to be rule out at this time," there is no indication that this is attributable to prostate cancer even if present.

Weighing the evidence of record, the Board finds that the preponderance is against the claim.  As the evidence is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Accordingly, the claim is denied.

ORDER

A separate evaluation for non-genitourinary residuals of prostate cancer, including depressed mood, irritability, fatigue and lack of stamina/energy is denied.

____________________________________________
KRISTI L. GUNN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


text: Entitlement to a TDIU is inextricably-intertwined with the claim for a higher initial rating for PTSD and must also be remanded. [is remanded]

text:
Citation Nr: 1730000
Decision Date: 07/28/17    Archive Date: 08/04/17

DOCKET NO.  12-02 117	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

M. Lavan, Associate Counsel

INTRODUCTION

The Veteran had active military service from May 1966 to May 1968.  He received the Vietnam Service Medal with the Fleet Marine Force Combat Operation Insignia and two stars for his service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Houston, Texas.

In June 2013, the Veteran testified at a Board hearing before a retired Veterans Law Judge; a transcript of this proceeding is associated with the claims file.  He was notified of his right to a new hearing before another Veterans Law Judge in February 2017, but did not respond, thus waiving his right to a new hearing.

The Veteran contends that he is unemployable due to his service-connected PTSD; accordingly, the Board will take jurisdiction over his TDIU claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

This matter came before the Board in December 2013, at which time the Board remanded the matter for a VA examination and outstanding medical records.  As discussed below, the Board finds that another remand is necessary.  Stegall v. West, 11 Vet. App. 268 (1998).

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

REMAND

Per the December 2013 Board decision, the Veteran was afforded a VA PTSD examination in January 2014.  In July 2015, however, the Veteran stated he never received notification for the examination as ordered by the remand and requested to be scheduled for a C&P examination.  As the Veteran's medical records show that his PTSD causes mild memory loss, it is unclear whether this lapse in memory indicates that his service-connected PTSD has worsened.  Moreover, the Veteran recently filed for a TDIU based on all of his service-connected disabilities, including PTSD, implying that his PTSD has worsened.  In light of the length of the intervening period since the January 2014 examination and the evidence of worsening, a new examination is necessary to assess the current severity of the Veteran's PTSD.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (an examination was indicated where there was an allegation of increased disability, and two-years had passed since the last VA examination).

The record also suggests that the medical evidence is incomplete.  VA medical records from December 2013 to July 2014 are not associated with the claims file.  Additionally, the Veteran reported in January 2014 and August 2015 that he was still receiving treatment at the Vet Center for his PTSD.  The most recent Vet Center record associated with the claims file, however, is dated October 2011.  Attempts to obtain these treatment records must be made on remand.

Entitlement to a TDIU is inextricably-intertwined with the claim for a higher initial rating for PTSD and must also be remanded.

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding South Texas Veterans Health Care System records from December 2013 to July 2014 and from July 2016 to the present.  All records/responses received must be associated with the electronic claims file.
2.  Undertake all necessary actions to obtain the Veteran's Vet Center records, including records of individual and group therapy, from October 2011 to the present.  All records/responses received must be associated with the electronic claims file.

3.  Schedule the Veteran for a VA examination to assess the current severity of his service-connected PTSD. The examiner should review the claims file, examine the Veteran, and fully describe all psychiatric symptoms and manifestations in accordance with VA rating criteria.

4.  The RO should develop the TDIU claim as appropriate.

5. Thereafter, readjudicate the issue on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter or 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.A. �� 5109B, 7112 (West 2014).

_________________________________________________
KRISTI L. GUNN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), 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) (2016).


judge_norm: K A BANFIELD

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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.A. §§ 5109B, 7112 (West 2014).

text:
Citation Nr: 1732000
Decision Date: 08/08/17    Archive Date: 08/16/17

DOCKET NO.  07-24 716	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder, to include as secondary to cystic fibrosis.

2.  Entitlement to service connection for a disability manifested by fatigue, to include as secondary to cystic fibrosis.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel

INTRODUCTION

The Veteran served on active duty from August 1983 to October 1991, with additional subsequent service in the National Guard.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge at a personal hearing in December 2009.  A transcript is of record.  The claims were remanded by the Board in April 2010, September 2012, and May 2016.

As noted in the May 2016 Board decision, the Veteran filed a notice of disagreement (NOD) at the RO concerning the issues of service connection for a left knee disability, back disability and disability of the left and right hips, as shown in the electronic claims file (VBMS).  Such appeal remains in the VACOLS appeals tracking system as an active appeal at the RO.  While the Board is cognizant of the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is still in the process of adjudicating the appeal.  As such, no action will be taken by the Board at this time, and the issues presently before the RO pertaining to service connection for a left knee disability, back disability and bilateral hip disability will be the subject of a later Board decision, if ultimately necessary.

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

REMAND

The Board remanded the claim for service connection for a psychiatric disorder      in May 2016 in order to ask the Veteran to provide the dates and facilities where       he was seen for mental health counseling/treatment in service and, if sufficient information was provided, to request in-service mental health treatment records through appropriate sources.  In a statement received in June 2017, the Veteran reported receiving counseling related to depression and anger and marital problems while at Fort Bragg in 1986-1987.  No action was taken by the AOJ to request records associated with this reported treatment.  Where the remand orders of the Board 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 (1998).

On remand, the AOJ should request the Veteran's complete service clinical records related to mental health treatment/counseling he received at Fort Bragg.  This is especially important given that the Veteran's service personnel records corroborate that he was stationed at Fort Bragg during the timeframe he reported, specifically from November 1986 until December 1987.

The claim for service connection for a disability manifested by fatigue remains inextricably intertwined with the psychiatric claim and must also be remanded.

Accordingly, the case is REMANDED for the following action:

1.  Request the Veteran's complete service clinical records related to mental health treatment/counseling he received at Fort Bragg between November 1986 and December 1987.  If additional records are not obtained, the record should document whether further efforts to obtain clinical records would be futile.

2.  After undertaking the development above and
any additional development deemed necessary, the Veteran's claims should be readjudicated.  If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order.

The appellant 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 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.A. �� 5109B, 7112 (West 2014).

_________________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), 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) (2016).


judge_norm: BRADLEY W HENNINGS

text:
Citation Nr: 1734000
Decision Date: 08/18/17    Archive Date: 08/23/17

DOCKET NO.  08-23 655	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUE

Entitlement to a disability rating in excess of 10 percent for a left knee disability.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

A. D. Jackson, Counsel

INTRODUCTION

The Veteran served on active duty from November 1972 to April 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the VA RO.  A December 2011 rating decision continued the 10 percent rating of the Veteran's left knee disability.

In July 2012, the Board remanded the Veteran's claims for further development.

In September 2015, in pertinent part, the Board denied a rating higher than 10 percent for the left knee disability.

The Veteran subsequently appealed the September 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In a June 2016 order, the Court granted the parties' June 2016 Joint Motion for Partial Remand (JMPR) and vacated the Board's September 2015 decision to the extent that it denied an increased rating for left knee disability.

In August 2016, the Board remanded the case in order to comply with the dictates of the Court.

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

REMAND

As referred to in the prior remand, the parties to the 2016 JMPR found the VA examinations relied upon to support the Board's September 2015 denial were inadequate.  Specifically, the parties noted that the examinations failed to address the onset of pain during range-of-motion testing that resulted in functional loss.  The Board remanded and requested additional VA examination and opinion.  The Board requested that a VA examiner specifically indicate when the onset of pain during range-of-motion testing results in functional loss, if applicable.  The October 2016 VA examination report does not clearly delineate the point at which pain results in functional loss.  Nor does the examiner offer any explanation as to why this critical result was not included in the examination report as requested by the Board.

Moreover, the United States Court of Appeals for Veterans Claims (the Court) has recently held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of � 4.59."  Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. � 4.59, which addresses musculoskeletal claims where pain on motion is involved, indicates that "the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint."  Therefore, in light of Correia, a remand for a new VA examination is also necessary to complete the required range of motion testing.

Accordingly, the case is REMANDED for the following action:

1. Schedule a VA examination to determine the severity of the left knee disability. All necessary diagnostic testing and evaluation should be performed, and all clinical findings reported. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be completed for the disability on appeal. The range of motion testing must include active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

The examiner must specifically indicate, to the extent possible, when the onset of pain during range-of-motion testing results in functional loss.

2. After the above development has been completed, readjudicate the issue on appeal.

The Veteran has the right to submit additional evidence and argument on the matter 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.A. �� 5109B, 7112 (West 2014).

_________________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), 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) (2016).


judge_norm: J W ZISSIMOS

text:
Citation Nr: 1735000
Decision Date: 08/24/17    Archive Date: 09/06/17

DOCKET NO.  11-32 480	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland

THE ISSUES

1.  Entitlement to an increased rating for right knee chondromalacia and osteoarthritis with instability and locking, currently evaluated as 20 percent disabling.

2.  Entitlement to an increased rating for right knee chondromalacia and osteoarthritis with limited and painful motion, currently evaluated as 10 percent disabling.

3.  Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia and osteoarthritis with limited and painful motion prior to March 11, 2014 (exclusive of temporary total evaluations from May 6, 2010, to May 5, 2011, and from September 3, 2011, to March 1, 2012).

4.  Entitlement to an evaluation in excess of 20 percent for left knee chondromalacia with instability and locking prior to March 11, 2014 (exclusive of temporary total evaluations from May 6, 2010, to May 5, 2011, and from September 3, 2011, to March 1, 2012).

5.  Entitlement to an increased rating for residuals of a left knee arthroplasty, currently assigned a 30 percent evaluation (exclusive of temporary total evaluations from March 11, 2014, to May 1, 2015 and from September 15, 2015, to April 1, 2016).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

K. Osegueda, Counsel

INTRODUCTION

The Veteran served on active duty from November 1972 to May 1973.

This case initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

In October 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the record.

In September 2014, the Board remanded the case for further development.  The case was subsequently returned to the Board for appellate review.

As noted in the September 2014 remand, throughout the pendency of the appeal, the Veteran claimed entitlement to temporary total evaluations based on surgical treatments necessitating convalescence for left knee arthroscopies and arthroplasties.  He also requested extensions of temporary total evaluations assigned by the RO at various times during the pendency of the appeal.  As the Veteran's appeal for an increased evaluation for the left knee was still pending at these times, the Board found that the issue of entitlement to an increased rating for left knee chondromalacia and osteoarthritis with instability and locking remained in appellate status.

The Board also notes that the Veteran's appeal originally included the issue of entitlement to service connection for a lumbar spine disorder.  However, in a May 2015 rating decision, the Appeals Management Center (AMC) granted service connection for degenerative arthritis of the lumbar spine.  The AMC's grant of service connection constitutes a full award of the benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997).  Therefore, that matter is no longer on appeal, and no further consideration is necessary.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

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

REMAND

Pursuant to the September 2014 remand directives, the Veteran was afforded a VA knee examination in November 2014.  However, in light of a recent decision issued by the United States Court of Appeals for Veterans Claims (Court), a remand is required.  Specifically, the Court held that 38 C.F.R. � 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. Correia v. McDonald, 25 Vet. App. 158 (2016).  In this case, the November 2014 VA examination report did not include these findings.

Although the Board sincerely regrets the delay, it is necessary to ensure that the VA examination complies with the requirements of the recent holding in Correia.  The examiner should also determine whether it is possible to provide a retrospective medical opinion for the other VA examinations conducted during appeal period. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted).

In addition, the Veteran has submitted VA treatment notes showing that he underwent a left knee arthroscopy in February 2015 and a revision of his left knee replacement in September 2015.  This evidence suggests that the Veteran's left knee disability may have worsened since his last VA examination in November 2014.

VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).

Therefore, on remand, the Veteran should be afforded another VA examination to ascertain the severity and manifestations of his service-connected right and left knee disabilities.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected right and left knee disabilities.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.

Any outstanding VA medical records should also be obtained and associated with the claims file.

2.  Thereafter, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected right and left knee disabilities.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.

The examiner is requested to review all pertinent records associated with the claims file.

The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should report all signs and symptoms necessary for rating the right and left knee disabilities under the rating criteria.  In particular, the examiner should provide the range of motion in degrees of the right and left knees.  In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report.

With respect to the left knee, the examiner should also comment on whether the Veteran has prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity.  He or she should also indicate whether the Veteran has intermediate degrees of residual weakness, pain, or limitation of motion and whether there is any ankylosis, loss of extension, or malunion or nonunion of the tibia and fibula.

With respect to the right knee, the examiner indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or the symptomatic removal of semilunar cartilage.  He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe.  The examiner should further state whether the Veteran has any impairment of the tibia and fibula.

The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors.

Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examination conducted during the appeal period. See, e.g., August 2009, July 2010, August 2011, and November 2014 VA examination reports.  If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. � 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

3.  The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. �� 3.158, 3.655 (2016).

In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the VBMS file.  It should also be indicated whether any notice that was sent was returned as undeliverable.

4.  The AOJ should review the examination report to ensure that it is in compliance with this remand.  If a report is deficient in any manner, the AOJ should implement corrective procedures.

5.  After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.

6.  When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant 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.A. �� 5109B, 7112 (West 2014).

_________________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), 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) (2016).