Citation Nr: 21062099 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-29 682 DATE: October 6, 2021 REMANDED Entitlement to service connection for a respiratory disability, include chronic obstructive pulmonary disease (COPD), asthma, and emphysema, is remanded. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. Entitlement to a compensable rating for right knee limitation of flexion is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from June 1979 to February 1987 and from May 2006 to September 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were last before the Board in February 2019, when they were remanded for additional development. 1. Entitlement to service connection for a respiratory disability, include COPD, asthma, and emphysema, is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. 3. Entitlement to a compensable rating for right knee limitation of flexion is remanded. 4. Entitlement to a TDIU is remanded. The evidence indicates there may be outstanding relevant VA treatment records. A VA treatment record from June 11, 2020 indicates that the Veteran was to return for follow up appointments on July 22, 2020 and November 27, 2020. VA treatment records after June 24, 2020 have not been associated with the claims file. Additionally, a VA treatment record from December 18, 2012 indicates that an August 14, 2012 non-VA record was scanned into VistA Imaging. A December 29, 2014 VA record indicates that a Missouri Rehabilitation Center was scanned into VistA Imaging. An April 3, 2015 VA record indicates that a February 10, 2015 sleep study had been scanned into VistA Imaging. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. There also appear to be outstanding Vet Center treatment records. A September 26, 2016 VA treatment record indicates that the Veteran received treatment at the Springfield Vet Center for his service-connected PTSD. To date, Vet Center treatment records have not been obtained. As such records are potentially relevant to the Veteran's TDIU claim, a remand to obtain the outstanding records is required. The record indicates that there are outstanding private treatment records. A May 7, 2019 VA treatment record indicates that the Veteran received treatment for his COPD from a non-VA provider. To date, these records have not been requested or otherwise obtained. On remand, reasonable efforts should be made to obtain them. The record also reflects that the Veteran receives Social Security Administration (SSA) disability benefits. While a March 2015 SSA response indicates that there were no records available, in a June 2015 correspondence the Veteran explained that the negative SSA response was because he had only recently filed his claim. Additionally, a December 2020 correspondence indicates that the Veteran receives SSA disability benefits. Thus, another SSA request is warranted. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). Regarding the Veteran's respiratory claim, further clarification is required to clarify the Veteran's diagnosis and/or diagnoses. VA and private records note a diagnosis of asthma. However, that diagnosis appears to be based on the Veteran's reported history as it was entered when he initially established VA care without any testing and appears to have been changed to COPD after further testing. See November 16, 2007 VA record (noting that history of the present illness included mild asthma). Moreover, the September 2019 VA examiner indicated that although the Veteran was claiming service connection for asthma, the diagnosed COPD reflected the Veteran's condition, and no additional diagnoses were warranted. Nevertheless, as the September 2019 VA examiner did not acknowledge the VA and private diagnoses of asthma, emphysema, and bronchitis an addendum is required. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. In pertinent part, the February 2019 remand directed that the Veteran be provided a VA knee examination and that the examiner must attempt to elicit information regarding the frequency and duration of the Veteran's right knee flare-ups. The Veteran was provided a VA knee examination in September 2019. While the examiner noted that the Veteran had increased pain with flare-ups, there is no indication that the examiner inquired as to the frequency or duration of the flare-ups. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities, including the Springfield Vet Center. After securing any necessary releases request any relevant records identified. In addition, obtain updated VA treatment records dated since June 24, 2020 as well as the VistA Imaging records referenced in the December 18, 2012, December 29, 2014, and April 3, 2015 VA record entries. If any requested records are unavailable, the Veteran should be notified of such. 2. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. If any requested records are unavailable, the Veteran should be notified of such. 3. After records development is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's respiratory claim. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should: (a.) Identify all respiratory diagnoses present during the pendency of the appeal other than the Veteran's service connected OSA. The examiner should address the documented diagnoses of asthma, emphysema, COPD, and bronchitis. See e.g., March 2015 chest and thorax x-rays noting bilateral emphysematous changes and interstitial prominence that may relate to fibrosis or chronic bronchitis and November 16, 2007 VA record noting unspecified asthma. If the examiner finds that any noted diagnosis noted in the treatment records was not supported by the evidence, the examiner should provide a full explanation. (b.) State whether it is at least as likely as not (50 percent probability or greater) that any respiratory disorder identified during the pendency of the appeal had its onset during service or is otherwise related to service. (c.) State whether it is at least as likely as not (50 percent probability or greater) that any respiratory disability identified during the pendency of the appeal was caused by the service connected OSA? (d.) If not caused by the service-connected OSA, is it at least as likely as not that any respiratory disability identified during the pendency of the appeal is worsened beyond natural progression (aggravated) by his service-connected OSA? If the clinician finds that any respiratory disorder was aggravated by his service connected OSA, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the disability. The clinician should address the Veteran's history of tobacco use, the treatise evidence, and prior opinions from the August 2015, September 2015, and September 2019 VA clinicians and Dr. Skaggs. A complete rationale should be provided for all opinions and conclusions expressed. 4. After the above record development is completed to the extent possible, schedule the Veteran for a VA knee examination to determine the current nature and severity of his service-connected right knee disability. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken, and should be tested actively and passively, in weight bearing, and after repetitive use. (a.) For each range of motion testing conducted, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of 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. (b.) The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the severity, frequency, and duration of the Veteran's flares and ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. (c.) If it is not possible to provide a specific 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). (d.) To the extent possible, the clinician should also address any impact the Veteran's right knee disability has on his ability to perform tasks of sedentary and non-sedentary employment. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.