Citation Nr: 1332437 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 06-18 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating for arthritis of the right knee, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for residuals of a post-operative medial meniscectomy of the right knee, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for instability of the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from February 1980 to February 1983. The appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. REMAND Subsequent to the VA examination in March 2012, Social Security Administration (SSA) disability records were received by VA in May 2012. A SSA disability report in October 2006, the Veteran indicated that residuals of a crush injury to the right foot, blackouts and seizures, diabetes, high blood pressure, and sleep apnea impaired his ability to work; a right knee disorder was not mentioned. The SSA examiner observed that the Veteran used a cane. Additionally, a Social Security disability case report dated in December 2004reports disorders including a crushed right foot and diabetes, as well as reflex sympathetic dystrophy. In May 2012, the VA examiner that conducted the March 2012 examination provided an addendum to the previous examination discussing the Veteran's employability. However, there is no indication that the SSA were part of the record or that the examiner considered the SSA records. If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2012). Additionally, an adequate examination must support its conclusion with an analysis that can be weighed against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Thus, in this case, because the Board finds that the examiner failed to adequately address the other medical evidence of record in providing an opinion in the Veteran's impaired physical functioning, the Board is compelled to seek an additional opinion. Accordingly, the case is remanded for the following action: 1. The RO must again contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain any additional VA treatment records not yet obtained. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above development above has been completed, the Veteran's claims file must be returned to the VA examiner who provided the March and May 2012 examination findings and opinion, to review and discuss the evidence of record, to include the SSA records. It is not sufficient to merely state that the claims file has been reviewed, particularly in this case where other disabilities, to include residuals of a crush injury to the right foot, blackouts and seizures, diabetes, high blood pressure, sleep apnea, and reflex sympathetic dystrophy may impact the precise functional impairments that might be otherwise attributed to right knee disabilities. Rather, issues relevant to the assessment of the right knee disabilities raised by such review must be addressed by the examiner when determining the impact of the right knee disabilities on functioning. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed 3. If the examiner who performed the March 2012 VA examination is no longer available, the Veteran must be afforded a VA examination, to determine the current severity of his service-connected right knee disorders, to include arthritis and any associated limitation of motion, any symptomatic semilunar cartilage removal, and any subluxation and lateral instability or other impairment of the right knee. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. It is not sufficient to merely state that the claims file has been reviewed, particularly in this case where other disabilities, to include residuals of a crush injury to the right foot, blackouts and seizures, diabetes, high blood pressure, sleep apnea, and reflex sympathetic dystrophy may impact the precise functional impairments that might be otherwise attributed to right knee disabilities. Rather, issues relevant to the assessment of the right knee disabilities raised by such review must be addressed by the examiner when determining the impact of the right knee disabilities on functioning. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the service-connected right knee disorder. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc, due to the right knee disorder. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected right knee disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. If another examination is required, the RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If the issues on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).