Citation Nr: 20021364 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 15-04 211A DATE: March 25, 2020 REMANDED Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the left knee, status post reconstruction of anterior cruciate ligament (ACL) repair is remanded. Entitlement to a disability rating in excess of 20 percent for a right knee disability prior to July 17, 2014, and a disability rating in excess of 30 percent from September 1, 2015 is remanded. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder is remanded. REASONS FOR REMAND The Veteran had active service from July 1982 to July 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in April 2011 and February 2015. In June 2018, the Board remanded the matter for further development. 1. Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the left knee, status post reconstruction of anterior cruciate ligament (ACL) repair is remanded. 2. Entitlement to a disability rating in excess of 20 percent for a right knee disability prior to July 17, 2014, and a disability rating in excess of 30 percent from September 1, 2015 is remanded. The Veteran contends that increased ratings are warranted for his service-connected left and knee disabilities. In the June 2018 remand, the Board directed that an addendum opinion be obtained from the examiner who performed the April 2017 VA examination. The Board also noted that the April 2017 VA examination was inadequate because it did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In response, a new Knee and Lower Leg Conditions examination was conducted in April 2019. At the time of the examination, the Veteran reported that he walked with a limp favoring the right leg and uses a cane. The Veteran also stated that he had bilateral knee braces and has fallen several times due to both knees “buckling.” The Veteran further reported that he had constant bilateral aching knees which was noted to be severe in nature. The Veteran also reported that he attends physical therapy and takes medication. Upon examination, the Veteran denied flare-ups of the knee and lower leg. As to functional loss, the Veteran reported that he cannot kneel or squat, cannot walk 50 yards at a time, and has a very hard time using stairs. Range of motion testing was not completed in any plane of motion. The examiner noted that he was unable to test initial ranges of motion due to the Veteran reported that it was “too painful.” The examiner also indicated that the Veteran was unable to perform repetitive-use testing with at least three repetitions. It was also noted that pain and lack of endurance significantly limited functional ability with repeated use over a period of time. The examination was not conducted during a flare-up, and the examiner again reiterated that the Veteran denied flare-ups. Muscle strength was measured as 4/5 (active movement against some resistance) in flexion and extension in both knees. The Veteran did not have muscle atrophy, ankylosis, recurrent subluxation, or recurrent effusion. The examiner noted that the Veteran had a moderate history of lateral instability. Joint instability was indicated, but it was noted that the Veteran was unable to perform joint stability testing due to pain. The Veteran used a brace and cane on a regular basis to ambulate. As to functional impact, the Veteran had difficulty with kneeling and squatting. The examiner also stated that the Veteran was a fall risk and should avoid stairs and ladders. The examiner also reported that there was objective evidence of pain when both knees are used in non-weight bearing. Additionally, the examiner noted that there was a worsening in the Veteran’s symptoms, but that there was no change to his service-connected diagnosis and no additional diagnoses had been rendered. Here, the Board finds that the April 2019 examination is inadequate. In this regard, the Board notes that at the beginning of the report, the examiner stated that the Veteran’s condition since onset has stayed the same. Yet, in another section of the report, the examiner stated that the Veteran’s condition worsened. Additionally, it was noted that the Veteran is able to walk (albeit with a limp). Here, it is unclear to the Board why range of motion testing was unable to be conducted in any plane of motion. The Board acknowledges that the examiner stated that the Veteran reported that it was too painful, but it is unclear whether the Veteran refused to provide any range of measurements in all planes of motion due to pain, particularly when there was no finding of ankylosis of either knee joint and in light of the Veteran’s denial of flare-ups. Also, the examiner stated that the Veteran did not have any contributing factors to his disability of either knee, but the Veteran reported that he, instead, had interference with sitting, standing, and a disturbance of locomotion. On remand, this inconsistency must be resolved. Further, the Board notes that during the examination, the Veteran reported that he attends physical therapy. However, these records are not a part of the claims file, so the Board presumes these records to be outstanding. On remand, the Veteran should be afforded a final opportunity to submit himself to range of motion testing of the bilateral knees and to provide a release of authorization to the private records, noted at the time of the examination, or an opportunity to provide them to VA himself. 3. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder is remanded. The Veteran contends that an increased rating is warranted for his service-connected PTSD. The Veteran was last examined by VA for his PTSD in October 2015. The Board finds that this examination is too remote in time to adequately assess the severity of the Veteran’s PTSD. As such, the Board finds that a new VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran’s service-connected PTSD. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a new VA Form 21-4142 for outstanding, relevant treatment records, to include physical therapy records as indicated during his back examination, conducted in April 2019. Make two requests for the authorized records from identified providers unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination with an appropriate professional to determine the nature, extent, and severity of his service-connected bilateral knee disability. All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion. The examination must include testing results on both active and passive motion, and in weight-bearing and nonweight-bearing. The examiner should assess where pain begins on the Veteran’s initial range of motion and upon repetitive testing. The examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Significantly, the examiner must estimate any functional loss in terms of additional degrees of limited motion of both knees and lumbar spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 3. Schedule an appropriate VA examination to determine the current nature and severity of his service-connected PTSD. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. All signs, symptoms, and manifestations of the Veteran’s PTSD should be noted. The examiner should fully describe the effects of the Veteran’s PTSD on his occupational and social functioning. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.