Citation Nr: 18155916 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-43 994 DATE: December 6, 2018 ORDER The application to reopen the claim of service connection for right elbow disability is granted. The application to reopen the claim of service connection for psychiatric disability is granted. Entitlement to service connection for major depressive disorder with anxious distress features is granted. Restoration of a 10 percent rating for right knee medial meniscus tear, from June 1, 2015, is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED The application to reopen the claim of service connection for bilateral hand disability is remanded. The application to reopen the claim of service connection for left ankle disability is remanded. Entitlement to service connection for bilateral elbow disability is remanded. Entitlement to service connection for bilateral wrist disability is remanded. Entitlement to service connection for right ankle disability, to include as secondary to service-connected bilateral knee disability, is remanded. Entitlement to service connection for bilateral foot disability is remanded. Entitlement to a rating in excess of 10 percent for right knee medial meniscus tear is remanded. Entitlement to a rating in excess of 20 percent for osteoarthropathy of the right knee is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the left knee is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s claim of service connection for right elbow disability was originally denied in an August 2005 rating decision on the basis that the claimed disability was not incurred in or caused by service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. The Veteran’s claim of service connection for psychiatric disability was originally denied in a July 2006 rating decision on the basis that the claimed disability was not incurred in or caused by service and was not related to service-connected right knee disability; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 3. Applications to reopen the claims of service connection for right elbow disability and/or psychiatric disability were denied in May 2008, August 2009, November 2012, and January 2013 rating decisions on the basis that new and material evidence had not been received; the Veteran did not appeal any of these decisions within one year of their issuance and new and material evidence was not received within those years. 4. The claim of service connection for right elbow disability (characterized as right arm disability) was adjudicated on a de novo basis and denied in a February 2013 rating decision on the basis that the claimed disability was not incurred in or caused by service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 5. Evidence received since the January 2013 and February 2013 agency of original jurisdiction (AOJ) decisions includes information that was not previously considered and which relates to unestablished facts necessary to substantiate the claims of service connection for right elbow disability and psychiatric disability, the absence of which was the basis of the previous denials. 6. The Veteran’s major depressive disorder with anxious distress features began during active service. 7. The reduction in the disability rating for right knee medial meniscus tear from 10 percent to 0 percent was based on a single VA examination and was not based on evidence of sustained material improvement under the ordinary conditions of life. CONCLUSIONS OF LAW 1. The AOJ’s August 2005, July 2006, May 2008, August 2009, November 2012, January 2013, and February 2013 rating decisions that denied the claims of service connection for right elbow disability and psychiatric disability are final. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. 2. The evidence received since the January 2013 and February 2013 AOJ decisions is new and material and sufficient to reopen the claims of service connection for right elbow disability and psychiatric disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for major depressive disorder with anxious distress features are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The reduction in the disability rating for right knee medial meniscus tear from 10 percent to 0 percent was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1993 to August 1993. These matters come before the Board of Veterans’ Appeals (Board) from January 2014, July 2014, and May 2017 rating decisions. The Board notes that the AOJ characterized the claims of service connection for right elbow disability and psychiatric disability as only including the issues of entitlement to service connection for right elbow arthritis, anxiety, and depression, and that these issues were adjudicated on a de novo basis in an August 2016 statement of the case. As explained in more detail below, claims of service connection for right elbow disability and psychiatric disability were most recently denied by way of final January 2013 and February 2013 rating decisions. Hence, the Board must initially determine whether new and material evidence has been submitted with regard to the claims of service connection for right elbow disability and psychiatric disability. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of these claims. Hickson v. West, 11 Vet. App. 374, 377 (1998). Accordingly, the Board has included the issues of whether new and material evidence has been received to reopen the claims of service connection for right elbow disability and psychiatric disability. Also, in light of the Veteran’s reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claims of service connection for bilateral elbow arthritis, bilateral wrist arthritis, right ankle arthritis, and bilateral foot arthritis as claims of service connection for bilateral elbow disability, bilateral wrist disability, right ankle disability, and bilateral foot disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Lastly, the Veteran has been unemployed during the entire claim period pertinent to his claim for increased ratings for service-connected right and left knee disabilities, the evidence reflects that he has been unable to work (at least in part) due to his claimed psychiatric disability, and the Board is awarding service connection for major depressive disorder with anxious distress features. Entitlement to a TDIU may be an element of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given the evidence of current disabilities, the Veteran’s claim for the highest ratings possible for his service-connected knee disabilities, and the evidence of unemployability due to now service-connected disability, the issue of entitlement to a TDIU is properly before the Board under Roberson and Rice and the Board has expanded the appeal to include this issue. I. Applications to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen the claims of service connection for right elbow disability and psychiatric disability The AOJ initially denied the Veteran’s claim of service connection for right elbow disability by way of an August 2005 rating decision on the basis that the claimed disability was not incurred in or caused by service. Specifically, the AOJ explained that there was no evidence of any complaints of, treatment for, or diagnosis of a chronic right elbow disability or any right elbow injury in the Veteran’s service treatment records. He underwent surgery in April 2005 to remove a benign mass from the right proximal radius, but there was no evidence that the claimed right elbow disability was incurred in or caused by service. The Veteran was notified of the AOJ’s August 2005 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the August 2005 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran’s claim of service connection for psychiatric disability (characterized as depression) was originally denied in a July 2006 rating decision on the basis that the claimed disability was not incurred in or caused by service and was not related to service-connected right knee disability. The AOJ explained that there was no evidence of any complaints of, treatment for, or diagnosis of chronic depression or any chronic mental/emotional/nervous disability in the Veteran’s service treatment records. Also, there was no evidence of any chronic psychosis within one year of the Veteran’s separation from service, he was first seen by VA for psychiatric problems in October 2004, and there was no evidence of any relationship between his depression and his service-connected right knee disability. The Veteran was notified of the AOJ’s July 2006 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the July 2006 decision became final. See Id. Applications to reopen the claims of service connection for right elbow disability (characterized as right arm disability) and/or psychiatric disability (characterized as depression) were denied in May 2008, August 2009, November 2012, and January 2013 rating decisions on the basis that new and material evidence had not been received. The Veteran was notified of these AOJ decisions, he did not appeal any of the decisions within one year of their issuance, and new and material evidence was not received within those years. Therefore, the May 2008, August 2009, November 2012, and January 2013 decisions became final. See Id. The claim of service connection for right elbow disability (characterized as right arm disability) was adjudicated on a de novo basis and denied in a February 2013 rating decision on the basis that the claimed disability was not incurred in or caused by service. The AOJ explained that there was no evidence of any complaints of, treatment for, or diagnosis of a right arm disability in the Veteran’s service treatment records. Although the report of a bone scan revealed increased activity in the proximal right radius, there was no evidence of any relationship between the claimed disability and service. The Veteran was notified of the AOJ’s February 2013 decision, he did not appeal this decision within one year of its issuance, and new and material evidence was not received within that year. Thus, the February 2013 decision became final. See Id. The pertinent new evidence received since the January 2013 and February 2013 denials includes a December 2015 VA preventive and disease management note and an October 2016 medical opinion from psychologist R. Wilson. This additional evidence includes a report of right elbow pain since 1993 and a medical opinion that the Veteran’s claimed psychiatric disability had its onset in service. The additional evidence pertains to elements of the claims that were previously found to be lacking and raises a reasonable possibility of substantiating the claims by indicating that the Veteran’s claimed right elbow disability may have been incurred in service and that his claimed psychiatric disability had its onset in service. The evidence is, therefore, new and material, and the claims of service connection for right elbow disability and psychiatric disability are reopened. See Shade, 24 Vet. App. at 110 (evidence raises a reasonable possibility of substantiating a claim if it would trigger VA’s duty to provide an examination). II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for major depressive disorder with anxious distress features The Veteran contends that he has current psychiatric disability which is associated with the symptoms of his service-connected knee disabilities. The Board concludes, for the following reasons, that the Veteran has a current diagnosis of major depressive disorder with anxious distress features and that this disability began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). An October 2016 Mental Disorders Disability Benefits Questionnaire (DBQ) (VA Form 21-0960P-2) completed by Dr. Wilson shows the Veteran has a current diagnosis of major depressive disorder with anxious distress features. In an attached statement, Dr. Wilson reported that he had examined the Veteran and reviewed his claims file and that his major depressive disorder with anxious distress likely (“more likely than not”) “began in the service” and was further aggravated by service-connected bilateral knee disabilities. Dr. Wilson explained, in pertinent part, that there is a large body of evidence-based qualitative research literature that supports a finding that the Veteran’s psychiatric disability was caused by pain and limitations from his service-connected knee disabilities which originated in service. The comorbidity between chronic musculoskeletal pain conditions (knee injury/limitation) and psychiatric conditions like depression and anxiety disorders has been well documented in research literature. This is especially salient in studies of U.S. military service members who are at increased risk of developing both musculoskeletal injury and psychiatric trauma symptoms during and post military service. Studies of U.S. service members have found rates of depression and anxiety disorders increasing, especially among service members who experience co-occurring chronic medical conditions and physical injuries encountered in service. The occurrence of physical injury that results in chronic pain (defined as pain that persists for at least 3 months after the resolution of a physical injury or disease process) is relatively common in the military, from basic training to after discharge. Chronic pain can affect social, occupational, and recreational function and can lead to problems of motivation, mood, social isolation, and estimation of self-worth. Chronic pain not only has adverse consequences on physiology, but it has also been associated with increased anxiety, fear, anger, and depression. Dr. Wilson further explained that studies have shown that one-third of veterans returning from military service will commonly suffer from depressive and anxiety disorders, most of which are related to co-occurring medical conditions. In the present case, the Veteran appeared to be continuing to struggle with debilitating daily living and social and vocational limitations/symptoms associated with his major depressive disorder with anxious distress features. This psychiatric disability appeared “to have begun in the service aggravated by his medical (knee) conditions uninterrupted through the present time.” Dr. Wilson’s October 2016 opinion is based upon an examination of the Veteran, a review of his treatment records, and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Thus, this opinion is adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In sum, the Veteran has been diagnosed as having major depressive disorder with anxious distress features and there is a probative medical opinion which essentially indicates that this disability had its onset in service due to symptoms/limitations that the Veteran was experiencing from his service-connected knee disabilities. There is no specific medical opinion contrary to a conclusion that the current major depressive disorder with anxious distress features had its onset in service. Hence, the Board finds that the preponderance of the evidence is in favor of a conclusion that the current major depressive disorder with anxious distress features had its onset in service. Entitlement to service connection for this disability is, therefore, warranted. III. Rating Reduction Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, the beneficiary must be given notice that he has 60 days to present additional evidence to show that compensation payments should be continued at the present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105 (e). Where a rating has been in effect for five years or more the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher disability rating. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (a). The provisions of 38 C.F.R. § 3.344 require that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417 (1993). Whether the reduction in the disability rating for right knee medial meniscus tear from 10 percent to 0 percent was proper The Board finds, for the following reasons, that the reduction in the disability rating for right knee medial meniscus tear from 10 percent to 0 percent was not proper and that, therefore, the 10 percent rating must be restored. Historically, in a March 1994 rating decision, the AOJ awarded service connection for right knee medial meniscus tear, based upon the Veteran’s service treatment records which revealed that he sustained a twisting injury to his knee in service, experienced right knee pain and tenderness, and had positive McMurray and Duck Walk tests. A 10 percent rating was assigned under Diagnostic Code 5257, effective from August 10, 1993. In a January 2014 rating decision, the AOJ proposed to reduce the disability rating for the Veteran’s right knee medial meniscus tear from 10 percent to 0 percent. The AOJ explained that the proposed reduction was based on the findings made during an October 2012 VA knee examination and the fact that the Veteran failed to report to reexaminations scheduled in December 2013 without good cause. During the October 2012 examination, the Veteran reported that his knee “continue[d] to deteriorate” with pain, swelling, popping, clicking, and difficulty going up and down stairs. Flare ups of swelling and sharp pain occurred each month, during which he was unable to walk for a couple of days at a time. There were also frequent episodes of joint locking and effusion. Examination revealed painful and limited right knee motion, but stability testing of the knee was normal and there was no evidence of any recurrent patellar subluxation/dislocation involving the right knee. The Veteran was diagnosed as having right knee osteoarthrosis. This disability impacted his ability to work in that it affected his ability to perform activities such as standing, walking, climbing stairs, and running. The Veteran was subsequently scheduled for reexaminations of his knee on two dates in December 2013, but he failed to report to the examinations. The Veteran was notified of the January 2014 rating decision by way of a January 2014 letter. This letter notified him that he had a period of 60 days within which to submit additional evidence showing that the reduction should not have been made, that he had a period of 30 days within which to request a predetermination hearing, and that if a request for a predetermination hearing was not received within 30 days or additional evidence was not received within 60 days, the rating for the service-connected right knee medial meniscus tear would be reduced from 10 percent to 0 percent and that reduced payments would begin the first day of the third month following notice of the final decision. In the July 2014 rating decision, the AOJ reduced the disability rating for the Veteran’s right knee medial meniscus tear from 10 percent to 0 percent, effective October 1, 2014. The AOJ cited the October 2012 VA examination and explained that there were no objective findings of instability or subluxation of the right knee during that examination. A routine reexamination was scheduled on two dates in December 2013, but the Veteran failed to report to those examinations without good cause. Also, there was no other evidence to support a rating based on knee instability/subluxation. Thereafter, in an October 2014 rating decision, the AOJ assigned an effective date of January 1, 2015 for the right knee medial meniscus tear rating reduction. The effective date of the reduction was again changed to June 1, 2015 by way of a March 2015 rating decision. The Board points out that the rating reduction for the Veteran’s right knee medial meniscus tear appears to have been made pursuant to the provisions of 38 C.F.R. § 3.655(c) due to his failure to appear for a necessary reexamination. This regulation provides, in pertinent part, that when continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (c) of 38 C.F.R. § 3.655. When a claimant fails to report for a reexamination and the issue is continuing entitlement, VA shall issue a pretermination notice advising the payee that payment for the disability for which the reexamination was scheduled will be discontinued or, if a minimal evaluation is established, reduced to the lower evaluation. Such notice shall also include the prospective date of discontinuance or reduction, the reason therefor, and a statement of the claimant’s procedural and appellate rights. The claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination or to present evidence that payment for the disability for which the reexamination was scheduled should not be discontinued or reduced. 38 C.F.R. § 3.655 (c)(1). If there is no response within 60 days, or if the evidence submitted does not establish continued entitlement, payment for such disability shall be discontinued or reduced as of the date indicated in the pretermination notice or the date of last payment, whichever is later. 38 C.F.R. § 3.655 (c)(2). Initially, the Board finds that the AOJ complied with the due process requirements of 38 C.F.R. § 3.105 (e) and 38 C.F.R. § 3.655(c) by issuing the January 2014 rating decision and January 2014 letter which proposed the rating reduction for the Veteran’s right knee medial meniscus tear. The Veteran was then given the appropriate time within which to provide additional evidence. Thereafter, the AOJ promulgated the October 2014 rating decision, implementing the proposed reduction. Thus, as the notice and due process requirements of 38 C.F.R. § 3.105 (e) and 38 C.F.R. § 3.655(c) have been met, no further discussion in this regard is necessary. The Board also acknowledges that the Veteran failed to appear for the necessary reexaminations in December 2013, that he did not provide any good cause for his failure to report, and that he did not otherwise request that his reexamination be rescheduled prior to the October 2014 decision which implemented the proposed reduction. Nevertheless, the Board points out that at the time of the October 2014 reduction, the 10 percent rating for the Veteran’s right knee medial meniscus tear had been in effect since September 1998. Thus, as the rating had been in effect for more than five years, the provisions of 38 C.F.R. § 3.344 (a), (b) are applicable in this case. As noted above, 38 C.F.R. § 3.344(a) provides that ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. In this case, the rating reduction for the Veteran’s right knee medial meniscus tear was based solely on the findings made during the October 2012 VA examination. Notably, during that examination the Veteran reported that his knee “continue[d] to deteriorate,” he reported that he experienced frequent flare ups of knee symptoms that rendered him unable to walk for days at a time, and there was evidence that his knee disability significantly impaired his ability to perform various physical activities. Hence, at the time of the October 2014 reduction, there was not clear evidence of sustained material improvement under the ordinary conditions of life. The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. The United States Court of Appeals for Veterans Claims (Court) has stated that both decisions by the AOJ and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio and will be set aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The law is clear that certain procedures must be followed when a disability rating is reduced. The failure to properly apply the provisions of 38 C.F.R. § 3.344 renders the reduction from 10 percent to 0 percent void ab initio. Kitchens, 7 Vet. App. at 320; Dofflemeyer, 2 Vet. App. at 277. Accordingly, under these circumstances, the previously assigned 10 percent rating for the Veteran’s right knee medial meniscus tear must be restored, effective June 1, 2015. REASONS FOR REMAND 1. The application to reopen the claims of service connection for bilateral hand disability and left ankle disability and entitlement to service connection for bilateral foot disability and bilateral wrist disability are remanded. A September 2012 VA homeless program note indicates that the Veteran had applied for Social Security Administration (SSA) disability benefits for an unspecified disability. A remand is required to allow VA to request these outstanding and potentially relevant records. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Oklahoma City VA Health Care System and are dated to November 2017. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the remaining issues on appeal. A remand is required to allow VA to obtain them. 2. Entitlement to service connection for bilateral elbow disability and right ankle disability are remanded. The Veteran contends that he has bilateral elbow disability and right ankle disability which were incurred in service. In the alternative, he contends that his right ankle disability is associated with his service-connected knee disabilities. His VA treatment records include reports of elbow and ankle pain and the December 2015 VA preventive and disease management note suggests that he reported that he had experienced elbow and ankle pain since 1993. He has provided some information, however, which is inconsistent with this report. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for bilateral elbow disability and right ankle disability because no VA examiner has determined the nature of the claimed elbow and ankle disabilities or opined whether any such disabilities were incurred in service or are caused or aggravated by service-connected disability. Hence, a remand is necessary to afford the Veteran appropriate VA examinations. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, all outstanding SSA records and VA treatment records should be secured upon remand. 3. Entitlement to a rating in excess of 10 percent for right knee medial meniscus tear, entitlement to a rating in excess of 20 percent for osteoarthropathy of the right knee, and entitlement to a rating in excess of 20 percent for degenerative joint disease of the left knee are remanded. While the Veteran was most recently afforded a VA examination regarding his service-connected right and left knee disabilities in May 2017, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) and Correia v. McDonald, 28 Vet. App. 158, 168 (2016). As for Sharp, the Veteran reported frequent flare ups of bilateral knee symptoms. The examiner stated that an opinion as to the extent of any additional functional impairment of the knees during flare ups could not be provided without resort to speculation, but the examiner essentially only based this opinion on the fact that it was not possible to provide such an opinion without directly observing the Veteran during a flare up. Morever, the May 2017 examination report does not contain passive range of motion measurements or pain on both weight-bearing and non weight-bearing testing. Hence, the Veteran should be afforded a new VA knee examination upon remand. Also, all outstanding SSA records and VA treatment records should be secured upon remand. 4. Entitlement to a TDIU due to service-connected disabilities is remanded. Since the AOJ’s implementation of the Board’s restoration of a 10 percent rating for right knee medial meniscus tear and award of service connection for major depressive disorder with anxious distress features, and a decision on the other remanded service connection and increased rating issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. The TDIU claim should be adjudicated in the first instance by the AOJ, to include appropriate notification and a request for the Veteran to submit a formal application for a TDIU (VA Form 21-8940). The matters are REMANDED for the following action: 1. After implementing the Board’s decision above, including assigning the appropriate initial disability rating for major depressive disorder with anxious distress features, send the Veteran a notice letter which provides him with notice as to the information and evidence that is required to substantiate his claim for a TDIU. A copy of this letter must be included in the file. 2. Ask the Veteran to complete a formal application for a TDIU and to report his education and employment history and earnings, especially for the period since August 2013. 3. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for elbow disability, foot disability, ankle disability, wrist disability, hand disability, and knee disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for elbow disability, foot disability, ankle disability, wrist disability, hand disability, and knee disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 4. Obtain the Veteran’s federal disability and/or supplemental security income records from the SSA. Document all requests for information as well as all responses in the claims file. 5. Obtain the Veteran’s VA treatment records from the Oklahoma City VA Health Care System for the period since November 2017; and all such relevant records from any other sufficiently identified VA facility. 6. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current elbow disability. The examiner must opine whether any elbow disability experienced by the Veteran since approximately August 2013 at least as likely as not (1) began during active service; (2) manifested within one year after separation from service (in the case of any currently diagnosed arthritis); or (3) is related to an in-service injury, event, or disease, including the Veteran’s elbow problems documented in his service treatment records. The examiner must provide reasons for each opinion given. 7. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current ankle disability. The examiner must opine whether any ankle disability experienced by the Veteran since approximately August 2013 at least as likely as not (1) began during active service; (2) manifested within one year after separation from service (in the case of any currently diagnosed arthritis); (3) is related to an in-service injury, event, or disease; (4) is caused by service-connected knee disability; or (5) is aggravated by service-connected knee disability. The examiner must provide reasons for each opinion given. 8. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination by an appropriate clinician of the current severity of his service-connected right and left knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both knees. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected right and left knee disabilities alone and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare up. The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel