Citation Nr: 21064035 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-00 313 DATE: October 18, 2021 REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to a disability rating higher than 10 percent for a left knee disability is remanded. Entitlement to a disability rating higher than 10 percent for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from September 1965 to December 1966. In December 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the electronic claims file. In January 2018, the Board of Veterans' Appeal (Board) remanded the appeal for additional development. In March 2020, the Board denied the appeal. The Veteran appealed the March 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 order, which incorporated the parties May 2021 Joint Motion for Remand (JMR), the Court vacated and remanded the March 2020 Board decision. All the issues on appeal are remanded. As to all the issues on appeal, the JMR vacated and remanded the March 2020 Board decision because, among other things, the record included reference to the treatment the Veteran received from a Dr. Davieor and a Dr. Davisin and neither a request for these records nor the records themselves appear in the claims file. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Therefore, the Board finds that a Remand is required to obtain and associate with the record Dr. Davieor and Dr. Davisin treatment records as well as any other outstanding and available private and VA treatment records. See 38U.S.C. § 5103A(b); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). As to the claims of service connection for left and right hip disabilities, the JMR also vacated and remanded the March 2020 Board decision because the September 2018 VA examination the Board relied upon when denying the claims was not adequate. Specifically, the JMR stated that the September 2018 VA examination, which included an opinion that the Veteran did not have current hip disabilities, was not adequate because the opinion was internally inconsistent. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Therefore, the Board finds that a Remand is also required to provide the Veteran with another hip VA examination to obtain adequate diagnoses and etiology opinions. See 38U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Forcier, supra; McBurney, supra. In this regard, when providing the requested information, the examiner and the RO should be mindful of the fact that the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) held, in substance, that advance symptomatology that causes functional impairment can be considered a disability for VA compensation purposes. As to the claims for increased ratings for left and right knee disabilities, the JMR also vacated and remanded the March 2020 Board decision because it did not include an adequate discussion as to whether the Veteran met the criteria for separate compensable ratings for knee instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (July 1, 1997). Tellingly, the Board finds that the existing record does not contain adequate medical evidence for it to address this question. Therefore, the Board finds that a Remand is also required to provide the Veteran with another knee examination to obtain this information. See 38U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, when providing the requested information and when thereafter adjudicating the claims, the examiner and the RO should be mindful of the fact that VA recently amended the criteria for rating some musculoskeletal disabilities including the knees under 38 C.F.R. § 4.71a, Diagnostic Code 5257. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021); Also see 38 C.F.R. § 19.31 (a supplemental statement of the case (SSOC) will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (holding the VA may only apply the new rating criteria from the effective date of the change in the Diagnostic Code). The appeal is REMANDED for the following actions: 1. In order to comply with the JMR, after obtaining all needed authorizations from the appellant, associate with the claims file his treatment records from Dr. Davieor and Dr. Davisin as well as any other identified outstanding private treatment records. If possible, the appellant himself should submit and new pertinent evidence the Board/VA does not have (if any). Efforts to obtain Dr. Davieor's and Dr. Davisin's records should be fully documented in the claims file. If the records do not exist or that further efforts to obtain them would be futile, the Veteran should be notified in writing that the records cannot be found. 2. Obtain and associate with the claims file any outstanding VA treatment records. 3. In order to comply with the JMR, obtain VA opinions from a suitably-qualified medical professional to address the claims of service connection for left and right hip disabilities. The claims file should be made available and reviewed by the examiner in conjunction with providing the opinions. After a consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide diagnoses for all left and right hip disabilities. In providing answers to the above question, the examiner should be mindful of the fact that the Court in Saunders, supra, held, in substance, that advance symptomatology that causes functional impairment can be considered a disability. b. Provide an opinion as to whether arthritis in either hip manifested in the first post-service year. In providing answers to the above questions the examiner should specifically consider the Veteran's service treatment records. In providing answers to the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his left and right knee disabilities. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a) The examiner should identify all left and right knee pathology found to be present. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing based on the evidence of record. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. If it is, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If it is not, the examiner should ask the Veteran to describe the flare-ups he experiences, including the following: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited left and right knee forward flexion and backward extension caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot provide the range of motion estimate during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (e) The examiner should also state whether the degree of lost left and/or right knee motion equates to ankylosis. (f) The examiner should state the nature, extent, and severity of any left and/or right knee subluxation and/or instability. In providing the opinions, the examiner should consider the Veteran's competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After undertaking the above development, the RO should issue the Veteran a SSOC that, among other things, adjudicates and provides the appellant with notice of the new musculoskeletal Diagnostic Codes for rating the knees as well as considers whether the criteria for separate knee ratings for knee arthritis and instability as well as lost knee flexion and extension have been met. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021); Also see Esteban, supra; VAOPGCPREC 9-2004; VAOPGCPREC 23-97. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.