Citation Nr: 18152541 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-11 397A DATE: November 27, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected low back disability is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected right knee disability is remanded. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 2005 to August 2009. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). VA treatment records have been associated with the claims file since the March 2016 Statement of the Case (SOC) was issued. Although the Veteran’s substantive appeal was filed after February 2, 2013, these records were obtained by the VA rather than submitted by the Veteran, and thus there is no automatic waiver of AOJ review. 38 C.F.R. §§ 19.31, 20.1304(c). Additionally, in a statement received by the Board in November 2018, the Veteran confirmed he did not choose to waive AOJ consideration in the first instance. Accordingly, remand for AOJ review is required for all records relevant to some of the issues on appeal, as discussed below. 1. Entitlement to an initial rating in excess of 10 percent for a service-connected low back disability is remanded. The new VA treatment records associated with the file include numerous references to treatment for the Veteran’s low back disability. Of particular importance are treatment records showing a diagnosis of, and treatment for, radiculopathy. The most recent VA examination conducted in June 2014 found that the Veteran had arthritis and limitation of motion, but that he did not have radiculopathy or other neurologic abnormalities. Accordingly, the new VA treatment records are relevant to rating the Veteran’s low back disability because they show symptoms that have not already been considered by the RO. In addition, the June 2014 VA examination was not compliant with requirements from Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). First, it does not appear that the examination included evaluation of the Veteran’s range of motion for pain on both active and passive motion, and in weight bearing and nonweight-bearing. Second, although the examiner opined that there was “no additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time,” he provided no reasoning for his conclusion. Because the Veteran describes the impact of his flare-ups as becoming “immobilized,” it is necessary for the examiner to, if possible, provide an estimate as to the additional limitation of range of motion caused by the Veteran’s symptoms during a flare-up. See Sharp, 29 Vet. App. at 34. In addition, evidence of the frequency and duration of flare-ups would have been helpful to the Board. Based on the above, the Board finds it is necessary to remand the issue of entitlement to an increased initial rating for the Veteran’s service-connected low back disability. 2. Entitlement to an initial rating in excess of 10 percent for service-connected left and right knee disabilities are remanded. The new records associated with the claims file do not include treatment for the Veteran’s bilateral knee disabilities. However, as with the Veteran’s back examination, the Veteran’s most recent VA examination for his bilateral knee disability was not compliant with Sharp and Correia. The June 2014 examination states that Veteran reported his knees “become swollen and lock” during a flare-up, and that he has to sit down when that occurs. However, the opinion provided stated that there is “no additional limitation of functional ability of the knee joint during flare-ups,” with no additional explanation. Again, it is necessary for the examiner to, if possible, provide an estimate as to the additional limitation of range of motion caused by the Veteran’s symptoms during a flare-up, and the frequency and duration of flare-ups. Based on the above, the Board finds it is necessary to remand the issue of entitlement to an increased initial rating for the Veteran’s service-connected bilateral knee disabilities for further development. 3. Entitlement to an initial rating in excess of 50 percent for service-connected PTSD, to include TDIU, is remanded. The new VA treatment records associated with the claims file include treatment notes from numerous appointments for psychiatric care. As indicated above, the Veteran has requested that the RO review these records in the first instance. Given the length of time since the last VA examination in June 2014 and an apparent progression of the Veteran’s symptoms, the Board finds it is also prudent to schedule a new VA examination. In addition to the development necessary for the Veteran’s traditional increased rating claim, the Board notes that the Veteran has raised the issue of entitlement to a TDIU based on his PTSD symptoms. In the Veteran’s September 2015 Notice of Disagreement (NOD), he stated that he was unable to keep a job because of symptoms including mood swings, trouble sleeping, nightmares, depression, concentration issues, and always feeling “like hurting someone.” Records received since the SOC show that the Veteran was accepted into vocational rehabilitation, and an August 2016 record specifically shows that the Veteran was required to pursue psychiatric treatment as a part of his rehabilitation plan. Finally, the Board also notes that evidence in the file is suggestive that the Veteran may have experienced a traumatic brain injury (TBI) in service. However, no service connection claim has been filed for that disability. If the Veteran has been diagnosed with a TBI, the Board encourages the Veteran to file a claim. The matters are REMANDED for the following action: 1. Make arrangements to incorporate into the record any updated private and/or VA medical records concerning the claims. 2. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of his service-connected lumbar strain with degenerative joint disease of the thoracic spine (low back disability). All indicated tests should be performed, and the results should be reported in detail. The examiner is requested to: (a.) delineate all symptomatology associated with, and the current severity of the service-connected low back disability, to include neurologic symptomatology. (b.) record the results of range of motion (1) on BOTH active and passive motion AND (2) in weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing he or she should clearly explain why that is so. (c.) provide a full description of the manner and extent to which the Veteran’s service-connected low back disability, considered alone, impairs functioning. (d.) express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up when examined, the examiner should determine whether he or she can estimate, given the Veteran’s description of symptoms, what his range of motion would be on flare-up. Frequency and duration of flare-ups should be noted. If it is not feasible to offer any opinion to any degree of medical certainty without resort to speculation, the examiner must provide a specific explanation for why this is so. If such an opinion is not procurable based on a lack of knowledge, then the inability to offer such an opinion must be based on a lack of knowledge among the “medical community at large,” and not merely a lack of expertise, insufficient information, or unprocured testing on the part of the examiner. 3. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of his service-connected bilateral knee strain. The claims folder should be made available to the examiner. All indicated tests should be performed, and the results should be reported in detail. The examiner is requested to: (a.) delineate all symptomatology associated with, and the current severity of the service-connected bilateral knee strain. (b.) record the results of range of motion (1) on BOTH active and passive motion AND (2) in weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing he or she should clearly explain why that is so. (c.) provide a full description of the manner and extent to which the Veteran’s service-connected bilateral knee strain, considered alone, impairs functioning. (d.) express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up when examined, the examiner should determine whether he or she can estimate, given the Veteran’s description of symptoms, what his range of motion would be on flare-up. Frequency and duration of flare-ups should be noted. If it is not feasible to offer any opinion to any degree of medical certainty without resort to speculation, the examiner must provide a specific explanation for why this is so. If such an opinion is not procurable based on a lack of knowledge, then the inability to offer such an opinion must be based on a lack of knowledge among the “medical community at large,” and not merely a lack of expertise, insufficient information, or unprocured testing on the part of the examiner. 4. Schedule the Veteran for a VA PTSD examination to ascertain the current severity of the Veteran’s service-connected PTSD utilizing the DSM-5 criteria. The examiner should review the Veteran’s claims file in conjunction with the examination. All necessary tests should be conducted in order to ascertain the current severity of the Veteran’s service-connected PTSD. The report of examination should contain an account of all manifestations of the disability found to be present. The examiner should comment on the extent to which the service-connected PTSD impairs the Veteran’s occupational and social functioning. The examiner should provide a complete rationale for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. After completing the above development, and in accordance with the Veteran’s November 2018 request for initial review of all evidence by the AOJ, all issues on appeal should be readjudicated. T. WISHARD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel