Citation Nr: 19150445 Decision Date: 06/27/19 Archive Date: 06/27/19 DOCKET NO. 05-01 048 DATE: June 27, 2019 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected left knee disability is remanded. Entitlement to an increased rating in excess of 10 percent for left knee arthritis prior to August 30, 2018, is remanded. Entitlement to an increased rating in excess of 20 percent for left knee instability prior to August 30, 2018, is remanded. REASONS FOR REMAND The Veteran served in the United States Army February 1989 through August 1990. He was discharged under honorable conditions. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2018, the Board denied the Veteran’s claims. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (CAVC). Pursuant to an October 2018 Order granting a Joint Motion for Remand (JMR), the Veteran’s appeal was vacated and remanded to the Board. The Veteran is shown to have undergone a total left knee arthroplasty on August 30, 2018. Such has resulted in the assignment of a temporary 100 percent rating under Diagnostic Code 5055, effective from August 30, 2018. A 30 percent rating for the residuals of the total knee arthroplasty is to be assigned from October 1, 2019. A December 2018 rating decision indicated that the assignment of a separate 10 percent rating for arthritis of the left knee under Diagnostic Code 5261 would be discontinued. The increased rating issues on appeal have been recharacterized to reflect this development. 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected left knee disability is remanded. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran informed VA he was incarcerated with the Florida Department of Prisons (FDOP) for over 12 years. During this period, the Veteran stated he was given psychiatric treatment. There is evidence VA attempted to obtain medical records related to the Veteran’s left knee disability. VA requests sent in July 2013, April 2016, October 2016, and March 2017 are limited to records associated with his left knee condition and not psychiatric treatment. The Veteran provided FDOP a signed authorization to release all medical treatment to records to VA. The Veteran then notified VA that FDOP did not receive any records requests from VA. There is no evidence VA made further attempts to obtaining the Veteran’s treatment records. The record contains evidence the Veteran submitted some of his treatment records during his period with FDOP, however, it is unclear whether all relevant psychiatric records have been obtained and reviewed by VA. As such, a Remand is required to obtain the Veteran’s treatment records from FDOP while he was incarcerated. 2. Entitlement to an increased rating in excess of 10 percent for left knee arthritis is and an increased rating in excess of 20 percent for left knee instability are remanded. The Veteran underwent a post-surgical VA examination in December 2018. The examiner noted that he performed an in-person examination but he did not review any medical evidence. This is problematic because the VA examiner did not consider VA medical treatment records which note the Veteran underwent multiple steroid injections, had a history of left ACL repair and debridements, and that the Veteran was issued a walker in August 2018 which corrected his gait, prior to a total left knee arthroplasty. Consideration should also be given to the fact that the Veteran underwent a total left knee replacement in August 2018. Therefore, a “retrospective” medical opinion is needed to assist in determining the functional limitations of his left knee, if possible. See Chotta v. Peake, 22 Vet. App. 80 (noting that a duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). In that regard, there is also no evidence that VA sought to obtain records regarding the Veteran’s total left knee arthroplasty in August 2018 from Sacred Heart Hospital. Accordingly, a new VA examination of the Veteran’s service-connected left knee disability is warranted and efforts must be made on remand to procure the Veteran’s current VA and private treatment records. The matters are REMANDED for the following action: 1. With any required assistance of the Veteran, obtain any outstanding VA or private medical records and associate them with the claims file. A specific request should be made to obtain records from Sacred Heart Hospital. A specific request most also be made for any and all psychiatric treatment records from the Florida Department of Prisons. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner must perform appropriate range of motion testing, expressing all findings in degrees and noting the degree where painful motion, if any, is present, on both flexion and extension. Further, note the presence, or absence, of weakened movement, excess fatigability, and incoordination present, to include on repetitive testing. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and the range of motion measurements of the opposite undamaged joint. The examination report must confirm that all such testing has been made and reflect those testing results. The examiner must also indicate whether, and to what extent, there is any knee instability, subluxation or locking. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a period of flare-up, the examiner should glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. Further, the VA examiner should comment as to whether range of motion measurements of the left knee on active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated for the period of time before the Veteran had a total knee replacement (i.e., prior to August 30, 2018). If those measurements can be estimated, the estimations should be stated. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. The provided examination report must reflect consideration of both the medical and lay evidence of record and set forth a complete rationale for all findings and conclusions. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mahmoudi, Associate Counsel