Citation Nr: 18147941 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 08-03 904 DATE: November 6, 2018 REMANDED A disability rating greater than 20 percent for recurrent dislocation of the left knee is remanded. A disability rating greater than 10 percent for arthritis due to limitation of extension off the left knee is remanded. An effective date earlier than August 28, 2007 for grant of service connection for arthritis due to limitation of extension of the left knee is remanded. (The issues of entitlement to a disability rating greater than 10 percent for degenerative arthritis, patellar tendinitis fracture of the right knee, entitlement to a temporary total disability rating based on the need for convalescence for a right knee disability, and entitlement to a total disability rating based on the need for convalescence for a left knee disability are the subject of a separate Board decision.) REASONS FOR REMAND The Veteran had active service from April 1990 to April 1994, including in the southwest Asia theater of operations in the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which assigned, in pertinent part, a 20 percent rating effective July 1, 2005, for the Veteran’s service-connected recurrent dislocation of the left knee. In June 2010, the Veteran testified before the undersigned Veterans Law Judge at Travel Board hearing. A transcript of this proceeding has been associated with the claims file. In December 2010, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. In a November 2012 rating decision, the RO assigned a separate 10 percent rating effective January 28, 2012, for service-connected arthritis due to limitation of extension of the left knee. In November 2013, the Board denied the Veteran’s increased rating claims for recurrent dislocation of the left knee and for arthritis due to limitation of extension of the left knee. The Board also found that August 28, 2007, was the appropriate effective date for a separate 10 percent rating for service-connected arthritis due to limitation of extension of the left knee. The Veteran, through an attorney, and VA’s Office of General Counsel, appealed the Board’s November 2013 decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Partial Remand (First Joint Motion). The Court granted the First Joint Motion in August 2014, vacating and remanding that part of the Board’s November 2013 decision which denied increased ratings for recurrent dislocation of the left knee and for arthritis due to limitation of extension of the left knee and denied an earlier effective date than August 28, 2007, for a grant of service connection for limitation of extension of the left knee. In March 2015, the Board remanded all three of the Veteran’s currently appealed claims to the AOJ for additional development. In May 2016, the Board denied all three of the Veteran’s currently appealed claims. The Veteran, through an attorney, and VA’s Office of General Counsel, again appealed the Board’s decision to the Court by filing a Joint Motion (Second Joint Motion). The Court granted the Second Joint Motion in November 2016. In March 2017, the Board remanded all three of the Veteran’s currently appealed claims to the AOJ for additional development. Initially, as noted in the March 2017 remand, in the Second Joint Motion both parties contended that the Board erred in not ensuring compliance with its March 2015 remand directives concerning the Veteran’s medical records pertaining to his 2005 disability retirement from the United States Postal Service (USPS). See Second Joint Motion dated November 21, 2016, at pp. 2-3. The Board observes that, in its March 2015 remand, it directed that the AOJ attempt to obtain the Veteran’s disability retirement records from the appropriate Federal records repository. See Board remand dated March 24, 2015, at pp. 4. Following the Board’s remand, the AOJ sent a letter to the United States Office of Personnel Management (OPM) in April 2015 requesting the Veteran’s disability retirement records along with a signed records release form from the Veteran. OPM responded in June 2015 that it could not disclose these records to VA directly pursuant to the “Prudent Physician’s Rule.” OPM also stated in its June 2015 letter that, if VA provided OPM with the name and address of a physician where it could send these records, it would send them to the physician and he or she apparently could disclose the records to VA. The AOJ then contacted the Veteran in November 2015, notified him of its inability to obtain a more favorable response from OPM concerning his disability retirement records, and asked him to provide any copies of these records which were in his possession. The Veteran responded that he did not have any of these records. The AOJ subsequently concluded that these records were not available for review. Both parties to the Second Joint Motion requested that the Court order VA to designate a VA physician to receive the Veteran’s disability retirement records who subsequently could disclose these records to VA. See Second Joint Motion dated November 21, 2016, at pp. 3. In the March 2017 remand the Board recognized that OPM will not disclose the Veteran’s 2005 disability retirement records without following the process outlined in its June 2015 letter and, thus, directed that the AOJ request that the Veteran provide an updated records release form for his disability retirement records from OPM, designate a VA physician to receive these records, and then direct the designated VA physician to release these records to the AOJ so that they can be associated with the Veteran’s claims file. Pursuant to the March 2017 Board remand, the AOJ sought authorization from the Veteran to obtain records from OPM and, after sending this authorization to OPM, received a one-page document from OPM in December 2017 entitled “Notification of Personnel Action.” This document generally shows that the Veteran retired in June 1995 due to disability but does not contain any details regarding the Veteran’s retirement. Significantly, the December 2017 OPM response noted that any further information concerning such benefits could be obtained by contacting United States OPM, Retirement Operations Center, P.O. Box 45, Boyers, PA 16017. Unfortunately, the AOJ did not make any attempt to obtain additional records from OPM. On remand, the AOJ should request that the Veteran provide an updated records release form for his disability retirement records from OPM and then seek further information concerning such benefits by contacting United States OPM, Retirement Operations Center, P.O. Box 45, Boyers, PA 16017. If necessary, the AOJ should also designate a VA physician to receive the OPM records, and then direct the designated VA physician to release these records to the AOJ so that they can be associated with the Veteran’s claims file. Also, pursuant to the March 2017 Board remand, the Veteran was afforded a new VA knee examination in June 2017. In an October 2018 Informal Hearing Presentation, the Veteran’s representative argued that the June 2017 VA examination report contradicted itself. Significantly, while the June 2017 VA examiner wrote that the Veteran “could not walk properly, mobility is severely limited, restricted to a sedentary job,” the examiner also wrote that the Veteran exhibited “no evidence of pain upon passive range of motion of the right (and left) knee. There is no evidence of pain on weight bearing testing of right (and left) knee.” The Board also notes that the June 2017 VA examination findings are inconsistent with July 2016 VA examination findings. Specifically, the July 2016 VA examiner wrote that there was no evidence of flare-ups and the June 2017 VA examiner wrote that the Veteran did experience flare-ups. Significantly, a June 2015 VA opinion noted that the Veteran was not experiencing true “flare ups” but instead gave a history of additional symptoms and loss of motion after prolonged or repetitive use. Also, the June 2017 VA examination is negative for recurrent subluxation but the July 2016 VA examination shows moderate recurrent subluxation of the left knee. Furthermore, as noted in the First Joint Motion, the evidence suggests that the Veteran’s left knee disability may warrant a separate compensable rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5259 for symptoms associated with the removal of semilunar cartilage. In the March 2015 Board remand, a medical opinion was requested to determine whether a January 2005 left knee surgery included removal of semilunar cartilage or if there is any other evidence demonstrating that the Veteran underwent removal of semilunar cartilage at any time. In a June 2015 VA opinion, a VA examiner found that it was not possible to answer this question based on her review of the available information as the operative reports were unavailable. However, the claims file currently includes operative reports for the Veteran’s left knee surgeries so it is unclear why a medical opinion cannot be made regarding potential symptoms associated with the removal of semilunar cartilage. Also, the July 2016 VA examination report shows that the Veteran experiences residuals of a meniscus condition, described as pain due to meniscal tear. However, the June 2017 VA examination indicates that the Veteran does not currently have nor has he ever had a meniscus condition. Given the inconsistencies in the most recent June 2017 VA examination as well as the June 2015 VA opinion, additional medical opinion should be obtained to resolve the discrepancies regarding additional loss of motion due to pain, reported flare-ups, recurrent subluxation, and a potential meniscal condition resulting in the removal of semilunar cartilage. The AOJ also should attempt to obtain the Veteran’s updated treatment records. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA health care providers who have treated him for recurrent dislocation of the left knee and/or arthritis due to limitation of extension of the left knee in recent years. Obtain all VA treatment records which have not been obtained already. Request that the Veteran provide an updated signed records release form for his USPS disability retirement records from OPM. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already by all methods suggested by OPM previously, to include: • contacting OPM, Retirement Operations Center, P.O. Box 45, Boyers, PA 16017 • designating a VA physician to receive any outstanding records from OPM, informing the designated VA physician that he or she will be receiving relevant records concerning the Veteran’s disability retirement from USPS in 2005. Instruct the designated VA physician to disclose these records to VA by forwarding them to the AOJ upon receipt and provide a point of contact at the AOJ where this physician can send the records. Note this designation of a VA physician to receive the Veteran’s disability retirement records and a point of contact the AOJ where this physician can send the records in a formal memorandum and place a copy of this memorandum in the claims file. • contacting OPM, or other appropriate Federal records repository, requesting that they provide the Veteran’s complete records pertaining to his disability retirement from USPS in 2005. Provide OPM with the name and mailing address of the VA physician designated to receive these records. A copy of any letter(s) sent to OPM, and any reply, should be included in the claims file. Also, a copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Return the claims file to the VA examiner who conducted the Veteran’s June 2017 VA knee examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the claims file and the Remand have been reviewed. If the June 2017 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinions. After reviewing the record, the examiner should attempt to resolve the following discrepancies: • the June 2017 VA examination finding that the Veteran “could not walk properly, mobility is severely limited, restricted to a sedentary job” with the finding that the Veteran exhibited “no evidence of pain upon passive range of motion of the right (and left) knee. There is no evidence of pain on weight bearing testing of right (and left) knee.” • the July 2016 VA examination finding that there was no evidence of flare-ups, the June 2017 VA examination finding that the Veteran did experience flare-ups, along with the June 2015 VA finding that the Veteran was not experiencing true “flare ups” but instead gave a history of additional symptoms and loss of motion after prolonged or repetitive use. • the June 2017 VA examination negative finding regarding recurrent subluxation with the July 2016 VA examination finding of moderate recurrent subluxation of the left knee. • The June 2015 VA examiner’s finding that it was not possible to determine whether the Veteran experienced symptoms associated with the removal of semilunar cartilage based on her review of the available information as the operative reports were unavailable with the fact that the operative reports for the Veteran’s left knee surgeries are associated with the claims file, the July 2016 VA examination report showing that the Veteran experiences residuals of a meniscus condition, described as pain due to meniscal tear, and the June 2017 VA examination indicating that the Veteran does not currently have nor has he ever had a meniscus condition. 3. Review the Veteran’s claims file to ensure that all development requested in this REMAND has been completed, to the extent possible. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran’s claims. If the determination remains unfavorable to the Veteran, then the AOJ should issue a supplemental statement of the case to the Veteran which contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel