Citation Nr: 18146333 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-41 980 DATE: October 31, 2018 REMANDED The claim of entitlement to a disability rating in excess of 10 percent for left knee chondromalacia is remanded. The claim of entitlement to a disability rating in excess of 10 percent for right knee chondromalacia is remanded. The claim of entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1987 to November 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).   1. Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia 2. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia In increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner’s failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN’S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record- including the veteran’s lay information-or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. In increased evaluation claims, VA examinations for musculoskeletal conditions must 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. 38 C.F.R. § 4.59 (2018); Correia v. McDonald, 28 Vet. App. 158 (2016). VA provided an examination in April 2015. The Veteran reporting having flare-ups and described them as causing his right knee to swell with associated difficulty in walking. However, the examination report does not provide insight into the functional effects of the Veteran’s knee flare-ups. The VA examiner did not appear to elicit relevant information as to the Veteran’s flares and then provide an estimate of the Veteran’s functional loss due to flares based on procurable evidence, to include the Veteran’s lay statements. This is particularly important in the instant case because a 2014 VA examination showed that the Veteran’s knees were limited by an additional 50 degrees in flexion during a flare-up. In addition, although range of motion testing was conducted in active motion, the report does not document joint testing for pain on passive motion or in weight-bearing and nonweight-bearing. Thus, the most recent VA examination conducted in April 2015 does not comply with the Court’s holdings in Sharp and in Correia, and remand is therefore appropriate for a new examination. 3. The claim of entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) First, remand is necessary to obtain outstanding records of VA treatment. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2018). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). In his August 2016 VA Form 9, the Veteran reported that he had recently undergone an “intense traumatic session” that lasted approximately six months with sessions of 90 minutes each. These records are not associated with the claims file. Such records are relevant to the instant appeal and the Board finds that they should be obtained on remand. In addition, the Board finds that a current examination should be provided for the Veteran’s claim. VA's duty to assist includes obtaining evidence necessary to substantiate the claim, which may include a thorough and contemporaneous medical examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran asserts his PTSD is more severe than the presently assigned 70 percent. He asserts that the most recent VA examination conducted in April 2015 was inadequate, noting that the examination only lasted 15 minutes. See statement attached to August 2016 VA Form 9. He reported that his constant angry outbursts and aggressive behavior had caused the termination of his employment as of April 2015 and was destroying his relationship with his family. This statement conflicts with the Veteran’s statements in the most recent April 2105 VA examination. At that time, the Veteran reported that he left work that month due to his contract for employment expiring. However, he did indicate that he was counseled for overreactions at work and that he would become agitated with poor behavioral controls around other. The Veteran also reported in the August 2016 VA Form 9 that he started reexperiencing vividly realistic combat events that affected his insomnia. Finally, in the same statement, he reported that he had recently undergone an “intense traumatic session” that lasted approximately six months. These statements suggest that the Veteran’s PTSD has worsened since the most recent VA examination. 4. Entitlement to TDIU The Veteran asserts he is unemployable as a result of his service-connected conditions. See e.g. August 2016 VA Form 9. Thus, the Board finds that a claim of entitlement to a TDIU has been raised. As such, it follows that a request for a total disability rating based on individual unemployability (TDIU) was reasonably raised. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (providing that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability). No development has been undertaken for a claim of entitlement to a TDIU, including any inquiry into the Veteran’s employment status to corroborate his account that he ceased employment in April 2015. Therefore, remand is appropriate in order for the AOJ to develop a claim for a TDIU.   The matters are REMANDED for the following action: 1. Develop and adjudicate the Veteran’s claim for entitlement to TDIU. 38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 447 (2009). 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected bilateral knee disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the left knee in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner must also conduct the same testing on the right knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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 (2017). In the event that the Veteran does not report for any scheduled 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. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel