Citation Nr: 20046574 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 10-05 746 DATE: July 13, 2020 REMANDED Entitlement to a rating in excess of 30 percent for status post-surgery of the left ankle is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability, from June 2007 to present, and a rating in excess of 20 percent for left knee subluxation, from October 20, 2015 is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran had active service from June 1979 to June 1982. These matters come before the Board of Veterans’ Appeal (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA). In November 2016, the Board denied the Veteran’s claims and he appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In a November 2017 Memorandum Decision, the Court vacated the Board’s November 2016 decision and remanded the matters for further development and adjudication. All matters are remanded. In July 2018, the Board remanded the matters to afford the Veteran a VA examination and obtain a medical report which provided the current severity of the Veteran’s claimed disabilities. Specifically, the Board remanded the matters because the Court found that the previous October 2015 VA medical report did not provide the information requested in the October 2012 Board remand. The July 2018 Board remand requested that a VA examiner identify all residuals attributable to the Veteran’s service-connected left knee and left ankle disabilities. It also requested that the examiner state whether there was any evidence of dislocated semilunar cartilage in the left knee. It further, requested the examiner identify whether there was any abduction, adduction, inversion, or eversion deformity of the left ankle. The Board remanded the matter of entitlement to TDIU as inextricably intertwined with the other remanded matters. The Veteran resides out of the country and in October 2019, the Agency of Original Jurisdiction (AOJ) notified the Veteran of plans to schedule him for a VA contracted examination. In December 2019, a representative with the Federal Benefits Unit informed the AOJ that the Veteran had an appointment for an x-ray examination on December 20, 2019 and requested an additional 8 weeks before scheduling a VA examination. In January 2020, the Veteran underwent a VA contracted examination. The examiner did not complete the necessary Disability Benefit Questionnaires (DBQs) and opted for a report in letter form. In a February 2020 email, the Federal Benefits Unit representative notified the AOJ that the Veteran underwent a VA contracted examination. She noted that, “[t]he doctor did not complete the DBQs, however, the report appears to cover most of the information requested in the DBQ.” She requested the AOJ review the report and inform her if she needed to follow up with the doctor for an addendum or for completion of the DBQs. The AOJ did not follow up with representative regarding the deficiencies in the report (which were numerous). Rather, the AOJ issued a Supplemental Statement of the Case (SSOC) and highlighted the fact that the January 2012 examination report did not provide the requested information and concluded that an increased rating was not warranted. The AOJ failed to comply with the Board’s remand in this regard. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand “confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders”). Therefore, the Board finds that a remand is necessary to obtain an addendum DBQ which addresses all relevant rating criteria, including specific information requested by the Board’s remand. On remand, the AOJ should obtain any outstanding VA and private treatment records, including the December 2019 x-ray testing results. The matters are REMANDED for the following action: 1. Request that the Veteran identify all VA and private treatment records related to treatment of his claimed disabilities. Obtain all outstanding VA treatment records and request that he provide or authorize the release of any private treatment records. See December 2019 email where representative stated that the Veteran underwent x-ray examination in December 2019. If, after making reasonable efforts to obtain non-VA records the AOJ is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Then, request that the January 2020 VA contracted examiner (or an appropriate substitute) complete the requisite DBQs for the Veteran’s claimed left ankle and left knee disabilities and provide an assessment of the current severity of each. The Veteran’s electronic claims folder, including a copy of this remand, must be provided to the examiner. If the examiner feels another examination is needed, schedule the Veteran for another examination. The DBQ reports should provide a full description of the severity of the claimed disabilities and discuss the effect of the Veteran’s left knee and left ankle disabilities on any occupational functioning and activities of daily living. The examiner must identify all residuals attributable to the Veteran’s left knee and left ankle disabilities, including whether there is any evidence of dislocated semilunar cartilage in the left knee with frequent episodes of locking, pain and effusion into the joint; or symptomatic removal of semilunar cartilage in the left knee. The examiner must identify whether there is any abduction, adduction, inversion or eversion deformity of the left ankle. The examination report should also include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016) (precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). The Board is returning the matter because the January 2020 VA contracted examiner did not complete DBQs and omitted information requested in the July 2018 Board remand. 3. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal, including the issue of entitlement to a TDIU. If any benefit sought remains denied, provide an SSOC to the Veteran and his representative, and return the appeal to the Board for appellate review after the Veteran has an adequate opportunity to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Baskerville 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.