Citation Nr: 21071101 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 08-03 904 DATE: November 29, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative arthritis and recurrent patella tendinitis dislocation resulting from a left knee injury is remanded. Entitlement to a rating in excess of 10 percent for limitation of extension, left knee is remanded. Entitlement to an effective date before August 28, 2007 for service connection for left knee limitation of extension is remanded. Entitlement to service connection for an acquired psychiatric disability resulting from service- connected disabilities is remanded. Entitlement to total disability based upon individual unemployability (TDIU) before October 1, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1990 to April 1994, including in the Southwest Asia theater of operations in the Persian Gulf War. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal involved the ratings awarded for the Veteran's left knee. The Board notes that the Veteran also filed a separate appeal involving a disability rating greater than 10 percent for his right knee. The Board recently addressed that issue in a separate November 2021 decision. In June 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In a November 2012 rating decision, the RO assigned a separate 10 percent rating effective January 28, 2012, for service-connected arthritis due to limitation of extension of the left knee. In November 2013, the Board denied the Veteran's increased rating claims for recurrent dislocation of the left knee and for arthritis due to limitation of extension of the left knee. The Board also found that August 28, 2007, was the appropriate effective date for a separate 10 percent rating for service-connected arthritis due to limitation of extension of the left knee. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2014 order, the Court vacated and remanded the Board's decision for compliance with the instructions in the Joint Motion for a Remand. The Remand covered increased ratings for recurrent dislocation of the left knee and for arthritis due to limitation of extension of the left knee and denied an earlier effective date than August 28, 2007, for a grant of service connection for limitation of extension of the left knee (collectively, the three left knee claims). In May 2016, the Board denied all three of the Veteran's left knee claims. The Veteran again appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2016 order, the Court vacated and remanded the Board's decision for compliance with the instructions in the Joint Motion for a Remand. In March 2017, November 2018, and May 2021, the Board remanded all three of the Veteran's left knee claims for additional development. With apologies to the Veteran, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims for service connection. The Board has been frustrated in its efforts to obtain an adequate record to reach a decision by the VA examiners' lack of compliance with the Board's remand directives. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Discussed in detail below, the Board's prior remands directed new VA examinations with opinions and rationale that will allow the Board's decision to be a fully informed one. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Once again, however, despite detailed remand instructions, the Board is prevented from making a decision because the latest VA examinations do not provide sufficient rationale for the Board to rely upon for a decision. 1. Entitlement to a rating in excess of 20 percent for degenerative arthritis and recurrent patella tendinitis dislocation resulting from a left knee injury is remanded. 2. Entitlement to a rating in excess of 10 percent for limitation of extension, left knee is remanded. 3. Entitlement to an effective date before August 28, 2007 for service connection for left knee limitation of extension is remanded. As explained in detail in the December 2018 remand, the Board noted that the latest VA examination (June 2017) contained internal contradictions and conflicted with prior examinations. Notably, the Board sought clarification concerning whether the Veteran's knee disabilities caused flare-ups and or recurrent subluxations. In addition, the VA examinations conflicted as to whether the Veteran has a left knee meniscus condition causing symptoms. Thus, the Board directed VA obtain an additional medical opinion to resolve the discrepancies regarding additional loss of motion due to pain, reported flare-ups, recurrent subluxation, and a potential meniscal condition resulting in the removal of semilunar cartilage. The Veteran has received VA examinations since the December 2018 remand. Regrettably, the VA examinations have not provided the clarity sought by the Board and have worsened the medical picture before the Board. It appears an April 2021 VA examination occurred pursuant to the Board's directive. The VA examiner, however, merely recited findings from the prior VA examinations without providing opinions explaining or reconciling the discrepancies. The Board is aware of the differences between the VA examinations. The Board needs a medical opinion to help the Board make a fully informed decision in resolving the discrepancies. Furthermore, the VA examination added to the discrepancies by reporting no flare-up reports by the Veteran, findings of slight subluxation or instability, and the Veteran had a left knee meniscus condition. All of these findings are in apparent conflict with prior VA examinations. For instance, the Veteran has had two left knee arthroscopic operations in 2005 and 2008. In fact, the operative reports from both procedures suggest that the left medial meniscus and left lateral meniscus were normal. From a lay perspective, surgical repair or removal of the meniscus did not occur. Further confusing is that at the end the VA examiner states there is no evidence of semilunar cartilage symptoms (i.e., either meniscus) of the left knee. The other VA examinations (February 2021 VA examination, a second April 2021 VA examination, and VA examination) contained similar contradictions and internal inconsistencies. As one additional example, the May 2021 VA examiner stated that prior documentation did not show any documentation of a left knee meniscus problem and noted surgery for a right knee meniscus problem but not the left although both knees have had arthroscopic surgery. Yet, later in the report the VA examiner stated the Veteran had a bilateral meniscus condition with a history of bilateral meniscectomy in 2008. The examiner also reported a history of slight instability in the left knee although all joint stability tests of the left knee were normal. Accordingly, the Board has determined that the Veteran should receive yet again another VA examination with opinions that assist the Board to make a fully informed decision. The Board notes during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's disability is currently rated under Diagnostic Code 5257 which was amended. The VA examination shall provide sufficient evidence to rate the Veteran's left knee disabilities under both the old and the new rating criteria. In addition, the Veteran asserts he lost his job at the United States Postal Service (USPS) because of his left knee disability. VA requested the Veteran's medical records pertaining to his 2005 disability retirement from the United States Postal Service (USPS). The United States Office of Personnel Management (OPM) responded in June 2015 that it could not disclose these records to VA directly pursuant to the "Prudent Physician's Rule." OPM also stated in its June 2015 letter that, if VA provided OPM with the name and address of a physician where it could send these records, it would send them to the physician and he or she apparently could disclose the records to VA. In the March 2017 remand, the Board recognized that OPM will not disclose the Veteran's 2005 disability retirement records without following the process outlined in its June 2015 letter. Thus, the March 2017 remand directed that the RO request from the Veteran an updated records release form for his disability retirement records from OPM, designate a VA physician to receive these records, and then direct the designated VA physician to release these records to the RO so that they can be added to the Veteran's claims file. Pursuant to the March 2017 Board remand, the RO received an authorization from the Veteran for the OPM records. After sending this authorization to OPM, VA received a one-page document from OPM in December 2017 entitled "Notification of Personnel Action." This document generally shows that the Veteran retired in June 1995 due to disability but does not contain any details. Significantly, the December 2017 OPM response noted further information concerning such benefits could be obtained by contacting "United States OPM, Retirement Operations Center, P.O. Box 45, Boyers, PA 16017." Unfortunately, the RO did not make any attempt to obtain additional records from OPM. Thus, the November 2018 remand directed the RO to obtain the records from the Boyers address. This included requesting an updated records release from the Veteran, designating a VA physician to receive the records, and then request the OPM at the Boyers, PA Center to release the records to the designated VA physician. The RO sent a June 2020 letter to the Veteran asking him to sign a release for any employment medical records held by OPM. The same letter also asked him to provide a release for identified private medical records by signing VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA). The request for the OPM medical records, however, did not direct the Veteran to sign any particular form. The Veteran sent back the private medical records release forms but nothing regarding the OPM. Under the circumstances, the Board finds that the Veteran would find the RO June 2020 letter ambiguous. If the RO intended the Veteran to use VA Form 4142 and 4142A for the release of his OPM employment disability retirement records, it did not advise him of this fact. The Board therefore finds that the Veteran could reasonably conclude that the RO intended him to sign a particular VA form other than the forms he signed for private medical records. Accordingly, on remand, the RO is again directed to obtain the OPM records including asking the Veteran to sign a release for those record and specifically instruct and provide the proper VA forms for him to sign for those records. The RO shall also designate a VA physician to receive those records and then contact the United States OPM, Retirement Operations Center, P.O. Box 45, Boyers, PA 16017. If necessary, the RO should also designate a VA physician to receive the OPM records, and then direct the designated VA physician to release these records to the RO so that they can be associated with the Veteran's claims file. Ongoing medical records should also be obtained. 4. Entitlement to service connection for an acquired psychiatric disability resulting from service- connected disabilities is remanded. The Veteran has not filed a claim for service connection for an acquired psychiatric disorder. In February 2012, however, the Veteran submitted statements from his relatives describing psychiatric symptoms they have observed in the Veteran since he stopped working for the USPS in 2005. Specifically, he has become social withdrawn, isolates himself, and appears to be depressed. The Board has a duty to maximize benefits by "examining all possible rating methods" raised by the Veteran or reasonably raised by the record. Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019); Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) ("VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability."). Accordingly, the Board will assume jurisdiction for a claim for an acquired psychiatric disability caused or aggravated by the Veteran's left knee disabilities. Upon remand, once record development is completed, a VA examination should occur to determine whether the Veteran has an acquired psychiatric disability, and if so, whether it is caused or aggravated by his service- connected disabilities including the left knee disabilities. 5. Entitlement to total disability based upon individual unemployability (TDIU) before October 1, 2019 is remanded. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A TDIU is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). The Veteran first filed a TDIU claim in November 2005 Before filing the TDIU claim, however, the Veteran filed a claim for an increased rating as to his left knee disability in December 2004. The claim for TDIU expressly raised by the Veteran is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability, as part of a claim for increase for the left knee disability. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The TDIU claim was denied in February 2006. The Veteran appealed that denial to the Board along with his claims for higher ratings and an earlier effective date for the left knee disabilities. In June 2010, after the appeal had been certified to the Board, the Veteran requested in writing that his appeal as to TDIU entitlement be withdrawn. This was noted in the June 2010 Board hearing. Accordingly, the Board dismissed the TDIU claim in December 2010. Veteran again requested TDIU in June 2019. He was awarded TDIU effective October 1, 2019. Nevertheless, since his left knee disability rating claims remained pending, the Board finds the Veteran has a pending claim of entitlement to TDIU before October 1, 2019. Rice, supra. The Board finds that this claim is inextricably intertwined with the Veteran's other claims and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). In addition, the Veteran identified employment managing a recreation center during the summer for the Jackson, Alabama from June 2012 to September 2019. Upon remand, the Veteran should be asked for the release of relevant records and information regarding this employment. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his left knee claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Request that the Veteran provide an updated signed records release form for his USPS disability retirement records from OPM. The request MUST contain instructions to the Veteran what release forms he must sign also with copies of the forms he must sign and return. Once signed releases are received from the Veteran, obtain all records which have not been obtained already by all methods suggested by OPM previously, to include: a). Contacting OPM, Retirement Operations Center, P.O. Box 45, Boyers, PA 1601 b) Designate a VA physician to receive any outstanding records from OPM, informing the designated VA physician that he or she will be receiving relevant records concerning the Veteran's disability retirement from USPS in 2005. Instruct the designated VA physician to disclose these records to VA by forwarding them to the RO upon receipt and provide a point of contact at the RO where this physician can send the records. Note this designation of a VA physician to receive the Veteran's disability retirement records and a point of contact the RO where this physician can send the records in a formal memorandum and place a copy of this memorandum in the claims file. c) When contacting OPM, or other appropriate Federal records repository, request that they provide the Veteran's complete records pertaining to his disability retirement from USPS in 2005. d) Provide OPM with the name and mailing address of the VA physician designated to receive these records. A copy of any letter(s) sent to OPM, and any reply, should be included in the claims file. Also, a copy of any records obtained, to include a negative reply, should be included in the claims file. 3. Request that the Veteran provide a signed records release form for his employment records from the Jackson Alabama municipal government. The request MUST contain instructions to the Veteran what release forms he must sign also with copies of the forms he must sign and return. Once signed releases are received from the Veteran, obtain all records. A copy of any letter(s) sent to the Jackson Alabama municipal government, and any reply, should be included in the claims file. Also, a copy of any records obtained, to include a negative reply, should be included in the claims file. 4. After records development is completed, schedule the Veteran for a VA ¬¬¬knee examination to determine the current symptoms, level of severity, and functional impairment associated with his left knee. The claims file should be reviewed by the examiner. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. If it is not possible to specifically estimate knee range of motion during flare-up and after repetitive use over time without speculation, the examiner is asked to opine as to whether during these conditions forward flexion of the left knee would be limited to 45 degrees or less, or if extension of the left knee would be 15 degrees or more; if motion would be greater than this, that should be stated. The examination shall address the Veteran's left knee disabilities under all relevant old criteria and new rating criteria effective February 7, 2021 The examiner is also asked to discuss the following questions: After reviewing the record, the examiner should attempt to resolve the following discrepancies: a). The June 2017 VA examination finding that the Veteran "could not walk properly, mobility is severely limited, restricted to a sedentary job" with the finding that the Veteran exhibited "no evidence of pain upon passive range of motion of the right (and left) knee. There is no evidence of pain on weight bearing testing of right (and left) knee." b). The July 2016, February 2021, and the two April 2021 VA examinations finding that there was no evidence of flare-ups 2ith the June 2017 VA examination and May 2021 VA examination finding that the Veteran did experience flare-ups, along with the June 2015 VA finding that the Veteran was not experiencing true "flare ups" but instead gave a history of additional symptoms and loss of motion after prolonged or repetitive use. c). The June 2017 VA examination negative finding regarding recurrent subluxation with the July 2016 VA examination finding of moderate recurrent subluxation of the left knee, the February 2021 VA examination, April 2021 VA examination finding slight medial instability, and the May 2021 finding that all joint stability tests were normal. d). The June 2015 VA examiner's finding that it was not possible to determine whether the Veteran experienced symptoms associated with the removal of semilunar cartilage based on her review of the available information as the operative reports were unavailable with the fact that the operative reports for the Veteran's left knee surgeries are associated with the claims file, the July 2016 VA examination report showing that the Veteran experiences residuals of a meniscus condition, described as pain due to meniscal tear, the June 2017 VA examination indicating that the Veteran does not currently have nor has he ever had a meniscus condition. The first April 2021 VA examination stating the Veteran has had two left knee operations for a meniscus problem, and the May 2021 VA examination stating there was no evidence of prior left knee meniscus surgery but later stating the Veteran had left knee meniscus surgery in 2008. Specifically, the examiner is asked: i). Did the Veteran's 2005 arthroscopic surgery of the left knee involve the repair or removal of either meniscus of the left knee?; ii). Did the Veteran's 2008 arthroscopic surgery of the left knee involve the repair or removal of either meniscus of the left knee?; iii). Has the Veteran ever had or currently have meniscal symptoms of the left knee if so, are those symptoms separate and distinct from his other left knee disabilities (degenerative arthritis, recurrent patellar tendinitis dislocation, pain with limited extension)? The discussion should include whether the Veteran has symptomatic residuals of a meniscectomy or residuals of pain, locking, and effusion. If this cannot be accomplished 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) and explain why that is the case. 5. After the record development is completed, schedule the Veteran for a VA psychiatric examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disability had its onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current psychiatric disability is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected disabilities, to include because of losing his job with the USPS. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 6. Review the Veteran's claims file to ensure that all development requested in this REMAND has been completed, to the extent possible. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998) L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.