Citation Nr: 21001171 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-09 338 DATE: January 7, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected left knee strain with degenerative arthritis (left knee condition) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from November 1990 to June 1991, October 1992 to October 1995, September 1999 to May 2000, and January 2004 to March 2005, with additional service in the Army Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in March 2020. In September 2020, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. See September 2018 Board Hearing Transcript. Entitlement to an initial rating in excess of 10 percent for service-connected left knee condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of one prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is warranted as the evidence indicates that there may be relevant private medical records, of which VA is aware, that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran has received treatment for his left knee condition from the Mayo Clinic. See September 2018 Board Hearing Transcript. While excerpts of record from the Mayo Clinic have been associated with the claims file, none pertain to treatment for his left knee condition. See Mayo Clinic records, received March 2014 and June 2018. Moreover, there is no indication that any attempts have been made to obtain these records. As such, a remand is necessary to allow the AOJ to obtain pertinent medical records. See 38 U.S.C. § 4103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Second, a remand is warranted to afford the Veteran with an examination regarding the severity of his left knee condition. In September 2020, the Veteran underwent a VA examination to determine the current severity of his service-connected left knee condition. See September 2020 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). However, as noted above, pertinent private records have not been associated with the claims file. As the examiner was unable to consider the Veteran’s prior medical history, the Board finds an addendum opinion is warranted if additional records are secured. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Lastly, in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), and where this is an initial rating claim, a remand is necessary to allow the AOJ to obtain a retrospective opinion regarding the severity of the Veteran’s service-connected left knee condition. In Correia, the Court held 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. Correia, 28 Vet. App. at 168. Here, the September 2014, May 2016, and May 2017 examinations did not specify whether active and passive motion were tested or whether the results provided were weight-bearing or non-weight-bearing. See September 2014 VA Knee and Lower Leg Conditions DBQ; February 2016 VA Knee and Lower Leg Conditions DBQ; May 2017 VA Knee and Lower Leg Conditions DBQ. Additionally, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, flare-ups and repetitive use over time affect functional impact. Sharp, 29 Vet. App. at 26. Further, VA examiners are expected to offer opinions on functional loss that would occur during flare-ups and repetitive use over time based on estimates derived from relevant sources, including the Veteran’s lay statements. Id. at 34. In other words, stating that the examination was not conducted during a flare-up or following repetitive use over time as the sole rationale for not addressing the functional impacts of such is not sufficient. Here, the September 2014 examiner did not address the functional impact of repetitive use over time or during flare-ups, stating that the examination did not occur during such. See September 2014 VA Knee and Lower Leg Conditions DBQ. Likewise, though the February 2016 examiner noted that pain and weakness caused functional loss following repetitive use over time and during flare-ups, he did not opine as the resulting range of motion (ROM), stating that the examination did not occur during such. See September 2016 VA Knee and Lower Leg Conditions DBQ. Additionally, the May 2017 examiner did not address the functional impacts during flare-ups; no rationale was provided. See May 2017 VA Knee and Lower Leg Conditions DBQ. As the September 2014, May 2016, and May 2017 examinations did not fully satisfy the requirements of 38 C.F.R. § 4.59, Correia or Sharp, the Board finds that a remand is necessary to obtain a retrospective opinion regarding the severity of his service-connected left knee condition. Accordingly, the matter is REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, including records relating to treatment at the Mayo Clinic, as well as treatment at the Minneapolis VAMC from June 2020 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to ascertain the current severity of his left knee condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including onset and progression of symptomatology. If the Veteran describes flare-ups, document the frequency, severity, and duration thereof. (b.) Test and document the ROM for the left knee in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. The examiner must also conduct the same testing on the right knee. FOR EACH ROM, THE EXAMINER IS ASKED TO EXPLICITLY IDENTIFY THE DEGREE IN WHICH PAIN IS FIRST EVIDENCED BY THE VETERAN’S VISIBLE BEHAVIOR. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, a thorough explanation should be provided. (c.) Identify the nature and severity of all current manifestations of the Veteran’s service-connected left knee conditions. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (d.) If the Veteran describes flare-ups, after documenting the frequency and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. (e.) Provide a RETROSPECTIVE OPINION, utilizing the Veteran’s medical records and lay history, and opine as to the severity of the Veteran’s service-connected left knee conditions from December 2013 to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to range of motion (ROM), if possible. If the examiner is unable to render such an opinion, the examiner should specifically state why and provide a rationale for the determination. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT ACTION IS INCOMPLETE, THE APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT OR OPINION DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC REPORTS OR OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.