Citation Nr: 21000633 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-23 389A DATE: January 5, 2021 REMANDED The issue of entitlement to an initial evaluation in excess of 10 percent disabling for service-connected sinusitis (claimed also as rhinitis) is remanded. The issue of entitlement to an initial evaluation in excess of 70 percent disabling for service-connected major depressive disorder, recurrent, unspecified (previously rated as depressive disorder not otherwise specified), is remanded. The issue of entitlement to an evaluation in excess of 10 percent disabling for service-connected chondromalacia patella, right knee, is remanded. The issue of entitlement to an evaluation in excess of 10 percent disabling for service-connected chronic lumbosacral strain/sprain is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1986 to December 1990. In September 2018, the Veteran testified under oath at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2018, the issues on appeal were remanded for additional development. For the reasons outlined below, the Board finds that remand is again needed. In a July 2020 rating decision, the evaluation for service-connected major depressive disorder, recurrent, unspecified (previously rated as depressive disorder not otherwise specified) was increased from 10 percent disabling to 70 percent disabling, effective August 31, 2012. The increase is reflected in the issues on appeal. 1. Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected sinusitis (claimed also as rhinitis). 2. Entitlement to an initial evaluation in excess of 70 percent disabling for service-connected major depressive disorder, recurrent, unspecified (previously rated as depressive disorder not otherwise specified). 3. Entitlement to an evaluation in excess of 10 percent disabling for service-connected chondromalacia patella, right knee. 4. Entitlement to an evaluation in excess of 10 percent disabling for service-connected chronic lumbosacral strain/sprain. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. First, the Board notes that the July 2020 Supplemental Statement of the Case (SSOC) does not address the issue of an increased initial evaluation for service-connected major depressive disorder. As stated above, the Board acknowledges that the evaluation was increased to 70 percent disabling, effective August 31, 2012, in a July 2020 rating decision. Notwithstanding this increase, the Veteran is assumed to be seeking the highest evaluation available for any period in which she had less than a 100 percent rating. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Accordingly, the issue remains on appeal. As such, pursuant to the October 2018 remand directives, an SSOC should have been issued. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, the Board finds that there may be outstanding records. For example, the Veteran submitted a VA Form 21-4142 pertaining to records from J.Y. with the P.C.S.D. See VA Form 21-4142, October 2012. The Board acknowledges that attempts were made to obtain these records. See, e.g., VA letter, January 2013, February 2013, and April 2013. Nevertheless, as the Board is remanding this matter, it will afford a new opportunity to obtain these, and any other outstanding records. In addition, there may be outstanding records from the Social Security Administration (SSA). See SSA Inquiry, January 2013. Upon remand, the Board asks that the AOJ obtain these records, if possible. Finally, the Board finds that new examinations are needed regarding the Veteran’s service-connected right knee and spine disabilities. The Board acknowledges that the Veteran was evaluated at VA examinations in October 2019. Nevertheless, the Board finds that new examinations are needed for the following reasons. The examination report for the right knee notes pain in flexion. However, it is unclear from the examination report where pain begins in degrees of range of motion. Similarly, the October 2019 back examination report indicates pain in forward flexion and left lateral rotation, but did not clarify where pain begins in degrees of range of motion. Accordingly, upon remand, the Board asks that the Veteran be re-examined. See Correia v. McDonald, 28 Vet. App. 158 (2016). In addition, the Board requests clarification regarding the use of the knee in weight-bearing and nonweight-bearing. In the October 2019 VA examination report, the examiner indicated “no” to the question: “Is there evidence of pain with weight bearing?” in the right knee. Similarly, no objective evidence of pain was noted in the right knee when used in nonweight-bearing. However, in another part of the examination report, the examiner answered “Yes” to the question: “Is there pain when the joint is used in weight-bearing or nonweight-bearing [sic] if yes, identify whether weight-bearing or nonweight-bearing.” Clarification is needed upon remand of these seemingly contradictory statements. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. In particular, the Board notes that the Veteran submitted a VA Form 21-4142 pertaining to records from J.Y. with the P.C.S.D. See VA Form 21-4142, October 2012. The Board acknowledges that attempts were made to obtain these records. See, e.g., VA letter, January 2013, February 2013, and April 2013. Nevertheless, as the Board is remanding this matter, it will afford a new opportunity to obtain these, and any other outstanding records. In addition, obtain relevant records from the SSA pertaining to any application or award of disability benefits to the Veteran. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of severity of the right knee and spine disabilities. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked specifically to provide range of motion testing (ROM) for active motion, passive motion, weight-bearing, and nonweight-bearing. If applicable, full ROM testing also must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM on testing is conducted, this must be explained in the report. In addition, for the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. 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, as expressed in range of motion. The examiner should state whether or not there is any neurologic disability that is the result of the knee and spine disabilities. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, Associate Counsel 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.