Citation Nr: 21063825 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-60 089 DATE: October 18, 2021 REMANDED For the period prior to July 12, 2016, entitlement to a compensable disability rating for a left knee bone infarct of the posterior medial femoral condyle with Baker's cyst is remanded. For the period from July 12, 2016, to October 30, 2016, entitlement to a disability rating in excess of 10 percent for a left knee bone infarct of the posterior medial femoral condyle with Baker's cyst is remanded. For the period from December 1, 2016, to August 22, 2019, entitlement to a disability rating in excess of 10 percent for a left knee bone infarct of the posterior medial femoral condyle with Baker's cyst is remanded. For the period from October 1, 2020, entitlement to a disability rating in excess of 60 percent for a left knee disability status post replacement is remanded. For the period prior to October 1, 2020, entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND 1. For the period prior to July 12, 2016, entitlement to a compensable disability rating for a left knee bone infarct of the posterior medial femoral condyle with Baker's cyst is remanded. 2. For the period from July 12, 2016, to October 30, 2016, entitlement to a disability rating in excess of 10 percent for a left knee bone infarct of the posterior medial femoral condyle with Baker's cyst is remanded. 3. For the period from December 1, 2016, to August 22, 2019, entitlement to a disability rating in excess of 10 percent for a left knee bone infarct of the posterior medial femoral condyle with Baker's cyst is remanded. 4. For the period from October 1, 2020, entitlement to a disability rating in excess of 60 percent for a left knee disability status post replacement is remanded. 5. For the period prior to October 1, 2020, entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran served on active duty from August 1997 to August 2001 and from March 2003 to June 2003. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2019 decision, the Board denied the Veteran's claim of entitlement to an evaluation in excess of 10 percent for a left knee disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court set aside the Board's December 2019 decision pursuant to a Joint Motion for Remand (JMR) and remanded the case to the Board for readjudication in compliance with the JMR. In February 2021, the Board remanded these matters for further development. In May 2021, the RO issued a decision granting a 100 percent disability rating effective August 23, 2019 and a 60 percent disability rating effective October 1, 2020 for the Veteran's left knee disability. As the May 2021 decision constitutes a partial grant of the benefits sought on appeal, the issues remain on appeal as reflected on the title page. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). In the February 2021 remand, the Board directed the RO to seek to obtain certain records which appear to be in VA's Vista Imaging system. One additional treatment record from the perianesthesia care unit following the Veteran's August 2016 surgery has been added to the claims file, however, it does not appear that all of the requested records have been obtained and associated with the claims file, and it is unclear what efforts the RO made to obtain those records. The Board is unable to conclude that there is no reasonable possibility that obtaining the records would assist in substantiating the claims on appeal and, as those records are in the custody of a federal agency, VA is required to make as many requests as are necessary, or until VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 38 C.F.R. § 3.159. Additionally, in the Veteran's June 2021 TDIU application, the Veteran reported that he received treatment for his left knee from a "UK Doctor from UK Lexington" as well as the VAMC in Lexington, Kentucky. It is not clear whether the Veteran sought treatment from a private provider in addition to providers at the VAMC in Lexington, Kentucky. The RO should provide the necessary forms to the Veteran to request any records from a non-VA provider and assist the Veteran in obtaining those records if he requests VA's assistance in doing so. Finally, the JMR included a finding that the Veteran underwent a VA examination in March 2018 which does not comply with requirements of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Pursuant to the February 2021 Board remand, the RO scheduled a July 2021 VA examination. However, the Board finds that the March 2018 and July 2016 VA examinations also do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) as the examinations did not contain passive range of motion measurements or pain on weight-bearing testing. On remand, the RO should request a retrospective opinion related to the severity of the Veteran's left knee disability which complies with the requirements of Correia and Sharp for the period prior to July 12, 2016, for the period from July 12, 2016, and for the period from December 1, 2016. Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The matters are REMANDED for the following action: 1. Make as many attempts as necessary to obtain the Veteran's records scanned into the VistA image system. If the RO is unsuccessful in obtaining the records and has concluded that the records sought do not exist or that further efforts to obtain those records would be futile, a record should be made in the claims file detailing the RO's efforts to obtain the records. 2. Ask the Veteran to complete a VA Form 21-4142 for the non-VA physician identified in the Veteran's application for TDIU. Make two requests for the authorized records from any physician or facility identified by the Veteran, unless it is clear after the first request that a second request would be futile. 3. Obtain an addendum opinion from a qualified clinician. The examiner should be asked to provide a retrospective opinion and comment as to whether the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing and the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups can be estimated for the period prior to July 12, 2016, for the period from July 12, 2016, to October 30, 2016, and for the period from December 1, 2016, to August 22, 2019, for the Veteran's left knee disability. If an examination of the Veteran is necessary to provide the requested opinions, one should be scheduled. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.