Case A26021909

JOHN J. CROWLEY · 2026 · Case ID: A26021909

MIXED

Summary

The Veteran served from October 1983 to October 1987. The Veteran appeals decisions from September, October, and November 2019, primarily concerning denials and reductions of disability ratings. The Veteran sought service connection for a bilateral shoulder disability and a left foot scar, both of which were denied by the Board due to insufficient evidence of in-service incurrence or nexus. The Board also denied service connection for an acquired psychiatric disorder, citing a lack of treatment during service and a negative etiology opinion from a VA examiner. However, the Board reopened this claim due to new and relevant evidence submitted after the prior denial, specifically treatment records from September 2018 and October 2018. The Board found the prior VA examination inadequate for failing to address all potential diagnoses and stressors. Several claims regarding reductions in ratings for left hip strain, bilateral foot disability, and right hip limitation of extension were granted, as the Board found the reductions improper due to due process errors and inadequate evidence of material improvement. The Board also found the reduction of the Veteran's compensation during his incarceration from November 2018 to August 2019 to be proper, as due process was afforded. Multiple claims related to knee and hip disabilities, as well as ankle disabilities, were remanded for further development, including new examinations and obtaining missing medical records from Methodist Hospital in Memphis.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

191216-54853

Full Decision Text

Citation Nr: A26021909
Decision Date: 03/11/26 Archive Date: 03/11/26

DOCKET NO. 191216-54853
DATE: March 11, 2026

ORDER

The claim for service connection for acquired psychological disorder is reopened.

Entitlement to service connection for a left foot scar is denied.

Entitlement to service connection for bilateral shoulder disability is denied.

The decrease rating from 20 percent to 10 percent for a left hip strain disability effective September 6, 2019 was improper; the appeal is granted.

The decrease rating from 30 percent to a noncompensable rating for bilateral pes planus with plantar fasciitis effective October 2, 2019 was improper; the appeal is granted.

The decrease rating from 10 percent to a noncompensable rating for a right hip limitation of extension disability effective September 6, 2019 was improper; the appeal is granted.

The Veteran's benefits were properly adjusted during his incarceration; the appeal is denied.

REMANDED

Whether the Veteran's VA compensation benefits were properly restored after his November 2018 to August 2019 period of incarceration is remanded.

Entitlement to service connection for an acquired psychiatric disorder is remanded.

Entitlement to a rating in excess of 10 percent for a painful status post arthroplasty right knee scar is remanded.

Entitlement to a compensable rating for a right knee transverse status post arthroplasty scar is remanded.

Entitlement to a compensable rating for a left status post arthroplasty knee scar is remanded.

Entitlement to a rating in excess of 10 percent for left knee painful motion is remanded.

Entitlement to a rating in excess of 30 percent for a left knee disability status post total arthroplasty is remanded.

Entitlement to a rating in excess of 30 percent for a right knee disability status post total arthroplasty is remanded.

Entitlement to a rating in excess of 10 percent for right knee painful motion is remanded.

Entitlement to a rating in excess of 10 percent prior to August 30, 2024 and 20 percent thereafter for right hip strain, to include limitation of adduction is remanded.

Entitlement to a rating in excess of 10 percent for right hip limitation of flexion prior to August 30, 2024 and 20 percent thereafter is remanded.

Entitlement to a compensable rating prior to August 30, 2024 and 20 percent thereafter for a left hip limitation of flexion disability is remanded.

Entitlement to a compensable rating prior to August 30, 2024 and 20 percent thereafter for a left hip limitation of extension disability is remanded.

Entitlement to a rating in excess of 20 percent prior to August 30, 2024 and 40 percent thereafter for a back disability is remanded.

Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded.

Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded.

FINDINGS OF FACT

1. New and relevant evidence has been submitted sufficient to reopen the claim of service connection for an acquired psychiatric disorder.

2. The most probative evidence does not indicate the Veteran has a diagnosed left foot scar that was incurred in or due to his time in service.

3. The most probative evidence does not indicate the Veteran has diagnosed right and left shoulder disabilities that were incurred in or due to his time in service.

4. The evidence does not indicate a material improvement of the Veteran's left hip strain disability.

5. The reduction of the Veteran's 30 percent to noncompensable for his bilateral foot disability did reduce his overall compensation and proper due process procedures were not followed.

6. The reduction of the Veteran's 10 percent to noncompensable for his right hip limitation of extension disability did reduce his overall compensation and proper due process procedures were not followed.

7. The Veteran was incarcerated from November 2018 to August 2019 and was in receipt of a combined disability rating in excess of 20 percent.

CONCLUSIONS OF LAW

1. The criteria for readjudicating the claim of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5108 (a); 38 C.F.R. §§ 3.156 (d), 3.2501(a)(1).

2. The criteria for service connection for a left foot scar are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310.

3. The criteria for
and was in receipt of a combined disability rating in excess of 20 percent.

CONCLUSIONS OF LAW

1. The criteria for readjudicating the claim of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5108 (a); 38 C.F.R. §§ 3.156 (d), 3.2501(a)(1).

2. The criteria for service connection for a left foot scar are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310.

3. The criteria for service connection for a bilateral shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310.

4. The reduction of the 20 percent rating to 10 percent for a left hip strain disability was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 3.344, 4.1, 4.2, 4.71, DC 5253.

5. The reduction of the 30 percent rating to noncompensable for a bilateral foot disability was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 3.344, 4.1, 4.2, 4.71.

6. The reduction of the 10 percent rating to noncompensable for a right hip limitation of extension disability was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 3.344, 4.1, 4.2, 4.71.

7. The reduction of the Veteran's VA compensation benefits due to his incarceration was proper. 38 U.S.C. § 5313; 38 C.F.R. § 3.665.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from October 1983 to October 1987.

These matters are on appeal from September, October, and November 2019 rating decisions by a Department of Veterans Affairs (VA) regional office (RO).

In the December 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The Veteran has been scheduled for three hearing in November 2023, when he did not appear, January 2024 when the hearing was postponed, and again in April 2024 when the Veteran did not appear. No good cause was given for the missed hearings. The Board finds it has satisfied its due process obligations to provide the Veteran with the opportunity to have a hearing before a Veterans Law Judge (VLJ).

Therefore, the Board may only consider the evidence of record at the time of the September, October, and November 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative within 90 days following the date of the scheduled hearing. 38?C.F.R. §?20.302(c). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date of the scheduled Board hearing, or (2) more than 90 days following the date of the scheduled hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(c), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the Veteran's service connection for an acquired psychiatric disorder, his increased rating claims, and whether his VA compensation benefits were properly restored, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

New and Relevant Evidence Claim

In order to readjudicate
or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

New and Relevant Evidence Claim

In order to readjudicate a claim which has been previously considered, a claimant must present new and relevant evidence. 38 C.F.R. § 3.156(d). New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1).

The Veteran was previously denied service connection for an acquired psychiatric disorder in an August 2016 rating decision, saying his disability was not incurred in or due to his time in service. The RO noted there was some treatment for mental health while in service and as of January 2016, the Veteran was seeking treatment for his mental health. However, there was no treatment from the Veteran's time in service until approximately January 2016. The Veteran also did not appear for his scheduled VA examination.

In September 2017, the Veteran had a mental health examination.

The Veteran's claim was again denied in a September 2017 examination. The RO acknowledged the Veteran's STR from September 1984 when he was evaluated for psychological factors affecting a physical condition but no other complaints or treatment was reported in the Veteran's STRs. The examination showed a currently diagnosed mental health disability but the examiner offered a negative etiology opinion, opining it was less likely than not the Veteran's mental health disability was incurred in or due to his time in service.

Almost a year later, in September 2018, the Veteran submitted another claim for service connection for an acquired psychiatric disorder. In October 2018, records were added to the Veteran's file showing the Veteran was hospitalized for his mental health. These records are new in that they were not associated with the Veteran's file at the time of the previous final denial and they are relevant in that they tend to prove or disprove a matter at issue in the claim as the Veteran discusses his potential stressors while in service.

Therefore, the claim will be reopened.

Service Connection Claims

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Service connection can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id.

The Veteran claims service connection for a bilateral shoulder disability and a left foot scar disability.

The Veteran has been noted to have bilateral
in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id.

The Veteran claims service connection for a bilateral shoulder disability and a left foot scar disability.

The Veteran has been noted to have bilateral shoulder pain and a favorable finding in the November 2019 rating decision stated the Veteran had been diagnosed with a bilateral shoulder disability. (See e.g. March 2016 treatment records.) The Veteran's record does not indicate he has been diagnosed with a left foot scar.

The Veteran's STRs do not show complaint or treatment for any shoulder problems or left foot scar problems. While left foot pain was noted, no scars were reported.

The Board notes the Veteran was not provided a separate examination and opinion as to the current nature and etiology of his claimed bilateral shoulder and left foot scar disabilities. However, VA need not conduct an examination with respect to the claim on appeal, as information and the evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 76 (2006), VA must provide an examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim.

Simply stated, the standards of McLendon are not met in this case as the Veteran is not shown to have suffered shoulder injuries or a left foot scar while in service and there is no other competent medical evidence suggesting an association to service.

The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). The Board acknowledges it cannot deny a claim based on lack of treatment alone. However, the decades long time gap between the Veteran's separation from service and the first mention of these problems tends to weigh against the Veteran's claims.

The Board finds that service connection is not warrant for a bilateral shoulder or a left foot scar disability. In this case, the most probative evidence does not indicate the Veteran was seen in service for or complained of a shoulder issue or a left foot scar problem.

Reduction Claims

The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines. See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the veteran's condition).

Specifically, where a reduction in the evaluation of a service-connected disability or employability status is considered warranted, and the reduction would result in the reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons; the beneficiary must be notified at his or her last address of record of the action contemplated and furnished detailed reasons therefore and must be given 60 days for the presentation of new evidence to show that compensation should be continued at the present level. 38 C.F.R. § 3.105(e).

However, 38 C.F.R. § 3.105(e) does not apply if the rating reduction does not reduce the veteran's net compensation. See VAOPGCPREC 71-91 (Nov. 7, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the
will be prepared setting forth all material facts and reasons; the beneficiary must be notified at his or her last address of record of the action contemplated and furnished detailed reasons therefore and must be given 60 days for the presentation of new evidence to show that compensation should be continued at the present level. 38 C.F.R. § 3.105(e).

However, 38 C.F.R. § 3.105(e) does not apply if the rating reduction does not reduce the veteran's net compensation. See VAOPGCPREC 71-91 (Nov. 7, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) does not apply); Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days' notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran).

38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability for disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.

Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (a).

However, the provisions of 38 C.F.R. § 3.344 (c) specify that the above considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344 (2015).

The Court has held that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993).

Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary condition of life and work. Brown, supra; 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of the evidence weighs against the claim. Brown, supra.

In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).

In the October 2019 rating decision, the RO reduced the Veteran's rating for his bilateral foot disability from 30 percent to noncompensable, effective October 2, 2019, the date of his VA examination indicating an improvement as well as the Veteran's 10 percent evaluation to noncompensable for his right hip limitation of extension disability effective September 6, 2019. In the same rating decision, the RO also granted increased ratings which brought the Veteran's combined rating to 100 percent. The RO indicated due process procedures were not necessary because the reduction did not reduce the Veteran's overall compensation. Rather, the Veteran's rating would increase from September 6, 2019 and return to 90 percent from October 2, 2019. However, the Board finds this does constitute a reduction of the Veteran's overall rating because in the same rating decision, higher evaluations were granted, bringing the Veteran's combined rating to 100 percent. Thus, the reductions did decrease his rating from 100 percent back down to 90 percent. Thus, the Board finds this reductions improper because due process was not afforded to the Veteran and the 30 percent rating for his bilateral foot disability and his 10 percent rating for his right hip limitation of extension disability will be restored.

Here the Board notes that in a later August 2024 rating decision, the evaluation for the bilateral foot disability was again increased to 30 percent from August 30, 2024. However, the Board notes that prior to this, due to the reduction, the Veteran's rating for this disability was noncompensable from October 2019 to August 30, 2024. The 30 percent rating should be restored during this time as the reduction was improper.

In the November 2019 rating decision on appeal, the RO reduced the Veteran's left hip strain disability from 20 percent to 10 percent, effective October 2, 2019.

This reduction did not impact the Veteran's overall 90 percent rating at the time. Therefore, no due process was necessary before the reduction. The Veteran's left knee strain was rated under DC 5253. Under DC 5253, a 20 percent rating is warranted for limitation of abduction with motion lost beyond 10 degrees. A 10 percent rating is warranted for limitation of adduction/cannot cross legs. A 10 percent rating is also warranted for limitation of rotation/cannot toe out more than 15 degrees.

The RO based the reduction on the findings from an October 2, 2019 examination which indicated the Veteran did not have limitation of abduction with motion lost beyond 10 degrees. However, beyond this one evaluation, there is no indication there has been a material improvement in the disability. There are no other medical treatment records, examinations, or lay statements by the Veteran indicating in the Veteran's ability to function under ordinary condition of life and work. Thus, the Board finds the reduction based on this single checked box to be inadequate to warrant a reduction. Thus, the Veteran's 20 percent rating for a left hip strain disability is restored.

Incarceration Benefits Claim

The Board is bound by the laws and regulations that apply to veterans' claims. 38 U.S.C. § 7104 (c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2017). Those laws and regulations provide that a veteran who is incarcerated in a Federal, State, or Local penal institution in excess of 60 days for conviction of a felony committed after October 7, 1980, and who has a combined rating of 20 percent or more shall not be paid compensation in excess of the amount payable for a disability evaluated as 10 percent disabling beginning on the 61st day of incarceration. 38 U.S.C. § 5313; 38 C.F.R. § 3.665.

In June 2019, VA received information the Veteran had been confined on November 8, 2018.

Later records show the date of his release was August 6, 2019. On August 22, 2019, the RO sent notice of a proposed reduction of benefits based on the Veteran's incarceration along with information about the Veteran's due process rights.

The address on the notice letter was the same address provided by the Veteran and used by VA in several other previous correspondence. The notice letter also indicated a copy was sent to the Veteran's representative. In an October 2019 notification letter, the RO reduced the Veteran's VA compensation benefits after the 61st day of incarceration.

In his December 2019 Form 10182, the
received information the Veteran had been confined on November 8, 2018.

In his December 2019 Form 10182, the Veteran said he was not allowed to appeal before the decision was made. However, the Board notes the RO sent a proposal notification letter which contained information regarding the Veteran's due process rights and received no response from the Veteran within the given time frame. There is also no indication the Veteran did not receive the letter as there was no change of address form filed and no returned mail.

The Board finds the reduction of VA benefits during this period of incarceration to have been proper. Records show the Veteran was confined from November 8, 2018 to August 6, 2019. The Veteran's combined disability rating at the time was greater than 20 percent. Thus, it was proper to reduce the Veteran's VA compensation to the 10 percent rate on the 61st day of his confinement.

REASONS FOR REMAND

Whether the Veteran's VA compensation benefits were properly restored after his November 2018 to August 2019 period of incarceration

The October 2019 notification letter that reduced the Veterans' VA compensation benefits pursuant to the regulations regarding VA compensation while incarcerated also indicated the Veteran was still being paid the adjusted rate as of October 1, 2019. A July 2020 memo indicated the Veteran had been incarcerated from November 2018 to August 2019. The memo went on to state the Veteran had repaid his debt generated and had not received a check yet and to please resume the Veteran's benefit as soon as possible. There is no further indication the Veteran's full VA compensation benefit was restored after his November 2018 to August 2019 incarceration period was completed. The Board finds a duty to assist error because VA should have ensured the Veteran's VA compensation benefits were properly restored after his period of incarceration. Therefore, on remand, the RO should ensure the Veteran was properly paid for the period after his incarceration ended.

Entitlement to service connection for an acquired psychiatric disability

The Veteran previously had an examination for his mental health in September 2017. However, the accompanying opinion was inadequate because it did not fully address the Veteran's symptoms and why they were not due to his time in service. Also, the opinion did not address the mention of PTSD in the Veteran's file and did not offer an opinion as to whether his PTSD was due to his time in service.

In an August 2018 treatment record for his mental health, the Veteran mentioned in service stressors such as incoming small arms, rockets, bombs, mines and IEDs, snipers and attacks, as well as exposure to death of others and handling bodies. This treatment record also notes several mental health diagnoses beyond anxiety and alcoholism mentioned in the September 2017 examination, such as PTSD and a mood disorder.

The Board finds a pre-decisional duty to assist error in this matter because the Veteran has not been afforded an adequate examination for his psychiatric disability that encompasses all of his potential diagnoses. Therefore, on remand, an adequate examination should be obtained.

Entitlement to a rating in excess of 10 percent for a painful status post arthroplasty right knee scar

Entitlement to a compensable rating for a right knee transverse status post arthroplasty scar

Entitlement to a compensable rating for a left status post arthroplasty knee scar

Entitlement to a rating in excess of 10 percent for left knee painful motion

Entitlement to a rating in excess of 30 percent for a left knee disability status post total arthroplasty

Entitlement to a rating in excess of 30 percent for a right knee disability status post total arthroplasty

Entitlement to a rating in excess of 10 percent for right knee painful motion

Entitlement to a rating in excess of 10 percent prior to August 30, 2024 and 20 percent thereafter for right hip strain, to include limitation of adduction

Entitlement to a rating in excess of 10 percent for right hip limitation of flexion prior to August 30, 2024 and 20 percent thereafter

Entitlement to a compensable rating prior to August 30, 2024 and 20 percent thereafter for
of 30 percent for a left knee disability status post total arthroplasty

Entitlement to a rating in excess of 30 percent for a right knee disability status post total arthroplasty

Entitlement to a rating in excess of 10 percent for right knee painful motion

Entitlement to a rating in excess of 10 percent prior to August 30, 2024 and 20 percent thereafter for right hip strain, to include limitation of adduction

Entitlement to a rating in excess of 10 percent for right hip limitation of flexion prior to August 30, 2024 and 20 percent thereafter

Entitlement to a compensable rating prior to August 30, 2024 and 20 percent thereafter for a left hip limitation of flexion disability

Entitlement to a compensable rating prior to August 30, 2024 and 20 percent thereafter for a left hip limitation of extension disability

Entitlement to a rating in excess of 20 percent prior to August 30, 2024 and 40 percent thereafter for a back disability

Entitlement to a rating in excess of 10 percent for a right ankle disability

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

The Veteran informed VA that he may have medical treatment records from Methodist Hospital in Memphis. While the RO sent the Veteran a request to complete a VA Form 21-4142 Authorization to Disclose Information to VA and a signed release was submitted but missing the identifying medical facility, no further efforts were made by VA to obtain these potentially relevant treatment records.

The Board finds a pre-decisional duty to assist error because the RO did not make reasonable attempts to obtain these missing records. On remand, reasonable requests should be made to obtain these records.

It would be of great help to the Board if the Veteran simply obtained these records himself.

The matters are REMANDED for the following action:

1. VA should perform an audit of the Veteran account to ensure his VA compensation benefits were properly restored after his November 2018 to August 2019 period of confinement.

2. Reasonable efforts (at least two) should be made in order to obtain records from Methodist Hospital in Memphis.

3. Any negative responses should be associated with the file

Again, it would be of great help to the Board if the Veteran simply obtained these records himself.

4. Schedule the Veteran for an examination for his 1) acquired psychiatric disability. FOR EACH DIAGNOSED PSYCHIATRIC DISABILITY, the examiner should opine as to the following:

(a) Whether it is at least as likely as not the Veteran's disability was incurred in or due to his time in service?

(b) Whether it is at least as likely as not the Veteran's disability is proximately due to any of his service connected disabilities.

(c) Whether it is at least as likely as not the Veteran's disability was aggravated by any of his service connected disabilities.

NOTE: Aggravation in this context does not mean a permanent worsening. Any incremental or temporary worsening constitutes aggravation.

(Continued on the next page)

*The examiner must consider and take into account the Veteran's lay statements about what happened to him while in service and his current symptoms.

*The examiner may not rely solely on a lack of treatment as a reason for a negative etiology opinion.

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Snoparsky, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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