Citation Nr: 21002320 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-00 547 DATE: January 13, 2021 REMANDED The claim of entitlement to service connection for a neck disability is remanded. The claim of entitlement to an initial rating in excess of 50 percent for an anxiety disorder is remanded. The claim of entitlement to a rating in excess of 10 percent for a right knee disability is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from March 1971 to March 1973 and June 1973 to November 1980. The instant matter is on appeal from a January 2013 rating decision. The Board most recently remanded these issues in August 2017 in order to obtain additional medical records, as well as a medical opinion with respect to the etiology of the claimed neck disability. 1. The claim of entitlement to service connection for a neck disability is remanded. The Board regrets the additional delay, but remand is necessary in order to obtain a sufficient etiological opinion with respect to the Veteran’s claimed neck disability. In April 2018, the Veteran underwent a VA examination to assess the etiology of his neck disability, which has been diagnosed as degenerative joint disease of the cervical spine. The examiner indicated that the condition was at least as likely as not related to active duty service, but then stated that there was “no chronicity of treatment”. No other information was provided, and the brief rationale appears to contradict the box checked by the examiner for the nexus statement. The previous opinion from December 2012 did not address the Veteran’s report of blunt trauma to the neck in 1971 with a reinjury later in a jump accident. Thus, remand is necessary in order to obtain a clear medical opinion that considers the Veteran’s lay reports of symptoms associated with his neck disability. 2. The claim of entitlement to an initial rating in excess of 50 percent for an anxiety disorder is remanded. Remand is additionally required in order to obtain new VA examinations to assess the severity of the remaining disabilities on appeal, as well as obtain updated medical records. Initially, the Board notes that the most recent VA Medical Center records associated with the claims file were uploaded in September 2017 with treatment records as late as July 2017. Over three years later, the November 2020 Supplemental Statement of the Case readjudicated these increased ratings claims without consideration of updated medical records. The Veteran receives routine treatment for his anxiety disorder and right knee disability; thus, the three-year gap in records must be remedied on remand. Additionally, the Veteran’s most recent VA examinations of his anxiety disorder and right knee disability occurred in May 2016. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. In the present case, it has been over 4 years since the Veteran was last afforded examinations with respect to these disabilities, and the limited medical evidence of record indicates that they may have worsened since that examination. Furthermore, the May 2016 examination of the Veteran’s knee does not meet the requirements of Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), as it does not adequately discuss any additional functional limitation with repetitive use over time or during flare ups. As such, new VA examinations are warranted to more accurately assess the remaining disabilities on appeal. 3. The claim of entitlement to a rating in excess of 10 percent for a right knee disability is remanded. See discussion in Remand Section 2. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 2. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to assess the etiology of his neck disability. A complete copy of the claims file must be made available to the examiner. The examiner should take a full history from the Veteran, as well as consider his lay reports of symptoms associated with his neck disability. After a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a.) Identify any and all present disabilities of the neck or cervical spine. (b.) For each identified disability, is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed disability had its onset during active duty service? (c.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed disability was caused by his service-connected disabilities? (d.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed disability was aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of permanence) by his service-connected disabilities? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to assess the present nature and severity of his anxiety disorder. A complete copy of the claims file must be made available to the examiner. After a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a.) The present severity of the Veteran’s anxiety disorder, including any occupational impairment caused by the condition. (b.) If possible, provide a retrospective opinion of its severity since May 2016. The examiner should also provide an assessment of the Veteran’s occupational impairment in this period of time. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to determine the nature and severity of his right knee disability. A complete copy of the claims file must be made available to the examiner. The examiner should take a thorough history of observable symptomatology from the Veteran. The examiner must consider the Veteran’s lay statements regarding observable symptomatology associated with his knee disability. After a thorough review of the medical and lay evidence of record is complete, the examiner should discuss the following: (a.) Describe the current nature and severity of the Veteran’s right knee disability, including any and all diagnoses pertaining to his right knee. Indicate whether any new diagnosis is a progression of his service-connected disabilities. (b.) Assess both active and passive range of motion, as well as range of motion on weight-bearing and non-weight bearing. These ranges of motion must also be assessed for the Veteran’s left knee. (c.) If possible, estimate range of motion after repetitive use and during flare ups based upon observations in the examination and the Veteran’s lay reports of symptoms. (d.) If it is not possible to provide a measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (e.) Discuss the functional limitation, if any, of the Veteran’s right knee disability with consideration of the Veteran’s lay statements regarding his experienced limitations due to symptomatology. (f.) If possible, provide a retrospective opinion regarding limitations due to repetitive use and flare ups since February 2011 based on the Veteran’s lay statements of experienced symptomatology. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.