Citation Nr: 1802322 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 15-41 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right knee arthritis. 2. Entitlement to an initial rating in excess of 10 percent for instability of the right knee. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel INTRODUCTION The Veteran had active service from May 1953 to July 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky that, in pertinent part, granted service connection for right knee arthritis and assigned an initial 10 percent rating, effective October 29, 2013, and declined to reopen a claim for service connection for a back disability. In a November 2015 rating decision, the RO granted a separate 10 percent rating for instability of the right knee, effective October 29, 2013. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Initial higher ratings for right knee arthritis and instability. The Veteran submitted a release for medical information (VA Form 21-4142) in March 2014 for records from E.M. (Danville, Kentucky); however, no attempt was made to request these private treatment records. The RO must attempt to obtain these potentially pertinent private treatment records to satisfy VA's duty to assist the Veteran in developing his claim. See 38 C.F.R. § 3.159 (2017). The Board notes that, this authorization for release of medical information expires 180 days after it is signed, and so the authorization form currently of record is no longer valid. See March 2014 VA Form 21-4142 (noting authorization and consent ends 180 days from date of signature). Accordingly, the Veteran should be notified that he must complete and sign a new release to allow VA to request these records on his behalf. Further, in the December 2017 informal hearing presentation, the Veteran's representative asserts that a new examination is warranted that properly explains and describes functional loss from pain and during flare-ups consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). On remand, the Veteran should be scheduled for a new VA examination, and the examiner should opine on the Veteran's functional loss due to pain on use (inclusive of repetitive use) and flare ups in degrees of limited range of motion. The Board notes that the July 2015 VA examination that "I am unable to be present during this time" in response to questions such as whether pain, weakness, fatigability or incoordination significantly limited functionality of the right knee with repetitive use is an inappropriate response because our jurisprudence instructs examiners to interview the Veteran to obtain relevant information if the examiner cannot personally observe this. See, e.g., Sharp, supra (indicating that the examiner can elicit relevant information from a veteran as to functional loss during flares). Furthermore, during this new examination, if the examiner states that he or she cannot offer an opinion without resorting to speculation, then it (1) must be clear that the examiner has considered all procurable and assembled data, and (2) must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. Id. In other words, it must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large. Id. II. New and material evidence to reopen a claim for service connection for a back disability. The Board finds that the Veteran timely submitted a Notice of Disagreement in relation to the RO's January 2015 rating decision denying reopening of the Veteran's claim for service connection for a back disability. In response, the Veteran submitted a Notice of Disagreement (VA Form 21-0958) in March 2015, in which he indicated that he disagreed with the RO's denial of reopening of his back claim, stated that he hurt his back in service and has been having problems ever since. He further disagreed with the January 2015 decision declining to reopen his claim for service connection for a back disability in November 2015 written correspondence. See November 2015 VA form 9 in which the Veteran perfects his appeal of the claim for higher initial ratings for right knee disabilities. A remand is necessary when a Notice of Disagreement has been received and the RO has not yet had an opportunity to issue a Statement of the Case on that particular matter. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2017); Manlincon v. West, 12 Vet. App. 238 (1999). Because the Veteran timely filed a Notice of Disagreement in March 2015 in response to the RO's denial to reopen his back claim a Statement of the Case is required. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran and his representative with a Statement of the Case addressing the issue of whether new and material evidence has been received to reopen a claim for service connection for a back disability. The Veteran should be informed that in order to perfect an appeal of this issue to the Board he must file a timely and adequate substantive appeal following the issuance of the Statement of the Case. 2. Send a letter to the Veteran requesting that he identify private treatment records and any other relevant evidence pertaining to his right knee disability. He should be advised that the March 2014 Authorized Release form (VA Form 21-4142) for medical records for E.M. (Danville, Kentucky) is no longer valid, and that he must complete and sign a new authorization form should he want VA to attempt to obtain those records, and/or any other relevant evidence, on his behalf. A copy of this notification must be associated with the claims folder. If the Veteran fills out and returns any authorized release forms for private treatment records identified by him, reasonable efforts should be made to obtain such records. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 3. Upon completion of the foregoing, schedule the Veteran for a VA examination to ascertain the current nature and severity of his service-connected right knee disability. The entire claims file must be made available to the examiner, including any available private treatment records, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should conduct range of motion testing of the knees (expressed in degrees), to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If pain on motion is observed, the examiner should indicate the point at which pain begins in terms of degrees on the range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain the basis for this decision. The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the right knee due to pain or other symptoms during repeated use. To the extent possible, the examiner should express any additional functional loss in terms of degrees of limited motion. During repeated use testing, the examiner should note any observed pain, weakness, fatigability, or incoordination. If the examiner does not observe any of these symptoms then they should interview the Veteran regarding what functional loss occurs with repeated use and record those lay statements and then opine if such symptoms are medically feasible. If the examiner cannot provide an opinion about the Veteran's described functional loss without resorting to mere speculation, the examiner must support that opinion with a complete explanation as to why the examiner cannot provide the requested opinion without resort to mere speculation based on knowledge of the medical community at large. The examiner should also state whether the examination is taking place during a period of flare-up. The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the right knee during flare ups. To the extent possible, the examiner should express any additional functional loss in terms of degrees of limited motion. If the examination is not taking place during a flare-up, then, after interviewing the Veteran regarding flare ups, if the examiner finds that an estimate of the range of motion during flare ups cannot be provided without resorting to mere speculation, the examiner must support that opinion with a complete explanation as to why the examiner cannot provide the requested opinion without resort to mere speculation based on knowledge of the medical community at large. Also, determine the severity of the Veteran's right knee instability; whether it is slight, moderate or severe. As per the Disability Benefits Questionnaire, the examiner should determine whether the Veteran has ankylosis of the knee; nonunion of the tibia and fibula with loose motion and requiring knee braces; dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in the right knee. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions. 4. Readjudicate the claims, to include consideration of all potentially applicable diagnostic codes. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).