Citation Nr: 1803750 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-21 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased evaluation in excess of 10 percent for left knee synovitis. 2. Entitlement to an increased evaluation in excess of 10 percent for status post synovectomy with debridement and chronic strain, right knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1987 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded this case for further development in November 2016. It has since been returned to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets any additional delay, further development is found needed in order to meet VA's duty to assist in providing the Veteran with adequate VA examination concerning her claim for higher disability ratings for her service-connected left and right knee disabilities. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Pursuant to the Board's November 2016 remand instructions, the Veteran was provided with an additional VA examination in April 2017 to assess the current severity and manifestations of her knee disabilities. On the examination report, the examiner noted the Veteran's reports of experiencing flare-ups for both knees involving fluid buildup, painful swelling, and difficulty straightening the knee, resulting in functional loss requiring her to move very slowly and limiting her ability to stand or walk for very long. The examiner documented range of motion from 0 degrees extension to 90 degrees flexion for both knees, without any further limitation of motion after three repetitions of movement. Pain was noted on both flexion and extension, but the examiner did not indicate at what degree objective evidence of pain first manifest. Additionally, while providing an opinion that the Veteran's range of motion for each knee would be further limited to 0 to 70 degrees during flare-ups or after repeated use over time, no explanation for such conclusion was provided. Of particular note, although the Veteran reported that during flare-ups she had difficulty straightening her knees (extension), the examiner did not find that any further limitation of extension of the knees would result during flare-ups or after repeated use over time. Additionally, although the examiner recorded the Veteran's description of her experience and functional limitations during flare-ups, specifics concerning the frequency and duration of such flare-ups were not recorded on the examination report. For these reasons, the Board finds the April 2017 examination to be inadequate for adjudicatory purposes, and remand is needed to ascertain the full extent of the Veteran's service-connected disabilities. As the Board is remanding this case for further development, the Veteran should again be asked to provide all necessary information and authorizations to allow VA to obtain relevant private treatment records on her behalf, including any record of private treatment from a private care provider at "Goldsboro" (as noted in a March 2011 VA medical annual physical). The AOJ should also take steps to associate any outstanding VA treatment records with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding VA treatment records, including those from December 2013 to the present, and associate them with the claims file. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. Ask the Veteran to identify any additional private treatment she has received relating to her knee disabilities that she would like VA to obtain, and to provide a release form for any such records so that VA can request the records on her behalf, to include those of primary care with "Goldsboro" and private orthopedic physical therapy in June 2012. After securing any necessary written authorization from the Veteran, obtain the private records identified, and document all such efforts made if any identified records cannot be provided. If any private records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow her the opportunity to obtain the records. 3. After completing the above and associating all responsive documents with the claims file, schedule the Veteran for an additional VA examination pertaining to the current severity and manifestations of her left and right knee disabilities with an appropriate medical professional ("examiner") who has not yet conducted an examination in this matter. All indicated studies must be conducted, including range of motion studies using a goniometer, and all findings reported in detail. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination, and the examiner should specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. After reviewing the medical and lay evidence of record, and interviewing the Veteran, the examiner should address the following with as much detail/specificity as possible: a. Conduct full range of motion studies for the left and right knee and document findings in terms of degrees. It should be documented whether there is pain on range of motion testing, and if so, the examiner must record the degree at which objective evidence of pain begins on both extension and flexion. Further, conduct range of motion testing under each of the following conditions and indicate whether objective evidence of pain is shown: * on weight-bearing * on nonweight-bearing * on active motion * on passive motion If there is no clinical evidence of painful motion on any such testing, the examiner must so state, and indicate that testing under each condition was performed. The Board notes that while the April 2017 examination report documented objective evidence of painful motion on flexion and extension, the degree at which such pain first manifest was not recorded. b. Provide specific findings as to the range of motion of each knee after three repetitions of movement, and state whether there is additional functional impairment of each knee due to pain, weakness, excess fatigability, and/or incoordination. Any additional loss of range of motion upon repetitive motion testing should be noted in terms of degrees of motion lost as well as additional symptomatology which results, if possible. If such information cannot be feasibly determined, the examiner must explain why this information cannot be provided. c. After reviewing the Veteran's complaints and medical history, and requesting further detail from the Veteran if necessary, provide an opinion regarding whether there is additional functional impairment of each knee due to pain, weakness, excess fatigability, and/or incoordination during flare-ups and/or repeated use over time. The Veteran's reports of the effects, frequency and duration of flare-ups should be recorded with as much specificity as possible (e.g. "flare-ups of severe pain lasting for X minutes/hours after standing/walking for Y minutes requiring the Veteran to stay seated/significantly decrease her walking speed/etc... throughout the duration of the flare-up" and occurring on average Z times per week, rather than "flare-ups of pain with prolonged standing"). Any additional loss of range of motion of each knee during flare-ups should be noted in terms of approximate degrees of motion lost as well as additional symptomatology which results, to the extent possible. The examiner must explain how he or she determined the approximation as to additional degrees of motion lost. Protective measures regularly taken by the Veteran to avoid flare-ups should also be documented. The April 2017 examination report indicates that the Veteran reported flare-ups of knee pain with activity, described as fluid buildup, painful swelling, and difficulty straightening the knee. Further detail is needed concerning the usual duration and frequency of the flare-ups. The examiner should consider the Veteran's described symptomatology, as well as medical evidence of record, in making this determination. If approximate degrees of motion lost cannot be feasibly determined, the examiner must explain why this information cannot be provided. d. Considering the evidence of record, objective findings from the examination, and the Veteran's subjective reports, indicate whether the Veteran has any recurrent subluxation and instability of each knee and if so, note the extent and severity of such instability (i.e. slight, moderate, or severe). In reaching a conclusion, the examiner should comment upon the Veteran's use of any assistive devices. e. Comment on the functional impact of the Veteran's knee disabilities on her activities of daily living, to include occupational activities. To the extent possible, provide an opinion as to the resulting limitations on both physical and sedentary occupational tasks. If the Veteran is currently unemployed, the examiner should still provide an opinion as to the resulting limitations that would be expected were the Veteran currently employed. A clear rationale for all opinions expressed should be provided and a discussion of the facts and medical principles involved should be included. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 4. Thereafter, review the requested VA medical examination report to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. 5. After completing the aforementioned, and any further development deemed necessary in light of the expanded record, readjudicate the Veteran's claims of entitlement to increased disability ratings for her service-connected bilateral knee disabilities. If the benefits sought on appeal are not granted in full, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL MARTIN 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).