Citation Nr: 18144493 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 12-24 052 DATE: October 24, 2018 REMANDED A rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. A rating in excess of 20 percent for degenerative arthritis of the left knee is remanded. A rating in excess of 20 percent prior to January 8, 2016, for low back degenerative arthritis L4, L5, S1, as secondary to a right knee disability is remanded. A rating in excess of 40 percent from January 8, 2016, for low back degenerative arthritis L4, L5, S1, as secondary to a right knee disability is remanded. REASONS FOR REMAND The Veteran had active service from November 1983 to November 1986. The Veteran testified before the undersigned Veterans Law Judge during a February 2015 hearing. This matter is on appeal from a May 2010 rating decision. The Board of Veterans’ Appeals (Board) denied a rating in excess of 10 percent for degenerative arthritis of the right knee, a rating in excess of 20 percent prior to January 8, 2016, and a rating in excess of 40 percent thereafter for low back degenerative arthritis L4, L5, S1, as secondary to a right knee disability, and a rating in excess of 20 percent for degenerative arthritis of the left knee, in a September 2017 Board decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). On the basis of Joint Motion for Remand (JMR), the Court, in May 2018, vacated the Board’s determinations of the above issues, and remanded them for further appellate consideration. 1. A rating in excess of 10 percent for degenerative arthritis of the right knee and a rating in excess of 20 percent for degenerative arthritis of the left knee are remanded. While the record contains a contemporaneous VA examination regarding the Veteran’s bilateral knee disability, the examination does not fully comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); 38 C.F.R. § 4.40; accord 38 C.F.R. § 4.45 (a)-(e). In order to comply with Correia, the examination must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Further, the examination recognized that the Veteran had pain, but failed to indicate at what point in the range of motion the pain began. Thus, remand is warranted for additional examination. Additionally, consideration also be given to whether the Veteran is entitled to a separate compensable rating for dislocation or removal of the meniscus of either knee under Diagnostic Codes 5258 and/or 5259 based on past meniscectomies per the Board’s May 2015 remand directives. 2. A rating in excess of 20 percent prior to January 8, 2016, and a rating in excess of 40 percent thereafter for low back degenerative arthritis L4, L5, S1, as secondary to a right knee disability is remanded. The Veteran was last provided a VA examination to assess the nature and severity of his low back disability in January 2016. However, the VA examiner did not provide a response regarding radiculopathy caused by the low back disability. Without any response by the examiner to the presence of radiculopathy, the Board is unable to adequately assess the low back impairment. In light of this deficiency in the January 2016 examination, remand for a new VA examination is warranted. Finally, the Veteran also indicated an application for disability benefits from the Social Security Administration (SSA) exists as the February 2014 VA record noted it has received records from the law firm Binder & Binder with respect to a claim for SSA benefits. It is not clear from the current record whether such benefits were granted. The Board notes that VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits pertinent to the claim on appeal. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In light of the Veteran’s statements made in connection with VA treatment relevant to the present claim, his complete SSA records, including all administrative decision(s) on his application for SSA disability benefits and all underlying medical records, if any, should be obtained on remand. The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding private or VA treatment records referable to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. Obtain the Veteran’s complete SSA records, including all administrative decision(s) on his application for disability benefits and all underlying medical records which are in SSA’s possession. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining any outstanding records, arrange for the Veteran to undergo VA examination by an appropriate medical professional for his service-connected bilateral knee disabilities. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be set forth, in detail. The examiner should conduct range of motion testing of the bilateral knees (expressed in degrees). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination as to the bilateral knees. If pain on motion is observed, the examiner should indicate the point at which pain begins. In order to comply with Correia v. McDonald, 28 Vet. App. at 169-70, the examination must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain or any of the other symptoms noted above during flare-ups or repetitive use. Further, the examiner must estimate any functional loss in terms of additional degrees of limited motion of the right knee experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. Consideration should be given to whether the Veteran is entitled to a separate compensable rating for dislocation or removal of the meniscus of either knee under Diagnostic Codes 5258 and/or 5259. All examination findings/testing results, along with complete rationale for the conclusions reached, must be provided. 4. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected low back disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. In offering any assessments or opinions, the examiner should take into account all evidence of record, to include both the lay and medical evidence. Following an interview with the Veteran, a review of the evidence of record, and a physical examination, the examiner should describe the current nature and severity of all manifestations of the Veteran’s service-connected back disability, including consideration of incapacitating episodes due to Intervertebral Disc Syndrome. The joint should be tested for pain on both active and passive range of motion in weight bearing and non-weight bearing. The examiner should specifically indicate whether such disability results in neurologic impairment, to include radiculopathy of either lower extremity. If so, the examiner should identify the nerve involved and describe the nature and severity of such symptomatology, to include whether such results in mild, moderate, or severe incomplete paralysis, or complete paralysis, of the affected nerve. The examiner should specifically ask the Veteran about functional loss and limitation of motion due to pain. The results should be portrayed in an approximation of degrees, if feasible. If the examiner determines that such an evaluation is not feasible, this should be stated and discussed in the examination report. The examiner should also specifically ask the Veteran about functional loss and limitation of motion due to flare-ups. The results should be portrayed in an approximation of degrees, if feasible. If the examiner determines that such an evaluation is not feasible, this should be stated and discussed in the examination report. If the Veteran does not have flare-ups or any other factors, that fact should be noted as well. All opinions expressed should be accompanied by supporting rationale. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel