Citation Nr: 21073284 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-10 011 DATE: December 8, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected left knee degenerative joint disease (DJD) with lateral instability is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to February 1981. In its November 2017 remand, the Board voided a reduction in the disability rating for the Veteran's service-connected left knee DJD with lateral instability, restored the 10 percent rating, and remanded the claim for a new VA examination to assess the current severity of the disability. Additionally, the Board recognized that a claim for a TDIU was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded it for further development. In April 2019, the Board again remanded the left knee rating claim for a new VA examination to accurately reflect the severity of the Veteran's left knee disability DJD consistent with the United States Court of Appeals for Veterans Claims decision in Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017) (holding that a VA examiner must elicit relevant information as to flare ups of a veteran's musculoskeletal symptoms or enquire as to the additional functional loss, if any, suffered during flare ups and then estimate the functional loss due to flare ups based on all the evidence of record or explain why such could not be done). The Board also remanded the Veteran's claim for entitlement to a TDIU as inextricably intertwined with the left knee rating claim. The Board finds that there has not been substantial compliance with its April 2019 remand directives regarding the Veteran's left knee rating claim, necessitating another remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Additionally, while this matter was pending at the Board, the Veteran's representative filed a motion pursuant to 38 C.F.R. §§ 20.1305(c) to submit additional evidence out of time, i.e., beyond the 90-day period after the AOJ's return of this case to the Board, accompanied by a statement waiving initial consideration of the evidence by the AOJ. See Representative's Motion received August 17, 2021 (VBMS label "Third Party Correspondence"). However, the motion and waiver are unnecessary as the evidence submitted with the motion, an undated VA knee x-rays report, was associated with the Veteran's claims file prior to the AOJ's issuance of its September 2021 Supplemental Statement of the Case and is listed as evidence it considered in its readjudication of the Veteran's claims. See Supplemental Statement of the Case dated September 21, 2021 at pg. 1 (Evidence). Therefore, the submission of the evidence was not out of time. Nevertheless, the undated VA x-ray report reveals that there are outstanding VA treatment records relevant to the instant increased rating claim as well as deficiencies in the July 2021 VA examination obtained pursuant to the Board's April 2019 remand. Therefore, remand is again necessary prior to the Board's adjudication of these claims. Left Knee Once VA undertakes the effort to provide an examination or medical opinion, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, there are numerous deficiencies reflected in the July 2021 VA examination report and the September 2021 addendum thereto. First, during the examination the Veteran endorsed "intermittent" left knee buckling, and the examiner noted on that basis that the Veteran was positive for a history of instability or recurrent subluxation. See VA Knee and Lower Leg examination dated July 14, 2021 at pg. 4. Nevertheless, the examiner concluded that the Veteran's left knee instability resolved because there was no evidence of lateral instability or subluxation of the Veteran's left knee on physical examination, having performed Valgus and Varus stress testing, the Lachman test, and anterior/posterior drawer testing, which were normal. Id. at pgs. 14, 20. In a September 2021 addendum, the VA examiner confirmed that because there was no evidence of knee instability during the July 2021 VA examination, therefore no diagnosis of instability could be rendered at that time. See VA addendum opinion dated September 17, 2021. The examiner's findings in this regard are based on the Veteran not experiencing instability at the time of the July 2021 VA examination. In reaching this finding, the VA examiner impermissibly disregarded the Veteran's lay assertions regarding "intermittent" left knee instability, his use of a knee brace for that reason, and prior VA examinations and treatment records reflecting intermittent left knee instability. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Second, the July 2021 VA examination report includes conflicting information regarding the Veteran's use of a brace for his left knee. The examiner noted that the Veteran denied use of an assistive device, but also indicated that the Veteran uses a knee brace as needed. See VA Knee and Lower Leg examination dated July 14, 2021 at pgs. 4, 18, 22. This internal inconsistency reflected in the July 2021 examination report further lowers its probative value. See Barr, supra. Third, the July 2021 VA examiner did not obtain imaging studies of the Veteran's left knee, instead relying on knee x-rays obtained nearly a decade ago in 2012. See VA Knee and Lower Leg examination dated July 14, 2021 at pg. 19. Considering that more recent VA knee x-ray findings were of record at the time of the July 2021 examination, e.g., a July 23, 2018 VA bilateral knee x-ray report, the examiner's decision to rely on 2012 x-rays is suggestive that his review of the Veteran's claims file was less than complete. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that, in general, a medical report cannot merely draw conclusions from data; rather, it should include "a reasoned medical explanation connecting the two"). Additionally, decade-old x-ray data is not reflective of the current severity of the Veteran's left knee disability, which may have impacted the examiner's assessment of the severity of the disability. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). Accordingly, remand for a new VA left knee examination is warranted. See Barr, supra; Stegall, supra. Lastly, the submission of the undated VA knee x-ray report by the Veteran's representative in August 2021, reveals that there are outstanding VA treatment records relevant to the Veteran's increased rating claim. The undated x-ray report by VA physician A.Y., M.D. reflects "Moderate, tricompartmental osteoarthritis, both knee joints showing interval worsening compared to 07/23/2018," and lists upcoming outpatient appointments, the first of which was August 3, 2021. This indicates that the undated x-rays were obtained between July 2018 and August 2021. As the record reflects that the AOJ has not obtained outstanding VA treatment records since July 2019, the July 2021 VA examination and the AOJ's readjudication of the claim in its September 21, 2021 Supplemental Statement of the Case are based on an incomplete record. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c)(2); see Bell v. Derwinski, 2 Vet. App. 611, 612-613 (1992). As outstanding VA treatment records are highly relevant to the Veteran's claim for an increased rating for his service-connected left knee disability, on remand, updated VA treatment records must be obtained and associated with the record. TDIU As the issue of entitlement to a TDIU could be affected by the decision on the increased rating claim being remanded, these matters are inextricably intertwined and as such, the TDIU claim must be remanded as well. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file, INCLUDING the complete VA bilateral knee x-ray report an incomplete copy of which was associated with the claims file by the Veteran's representative in August 2021 (see VBMS entry with document type "Medical Treatment Record - Government Facility," receipt date 08/17/2021). 2. Then, provide the Veteran with a VA examination by the same VA examiner who conducted the July 2021 VA knee/leg examination, if available, to identify the severity of the Veteran's service-connected left knee degenerative joint disease with lateral instability. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. OBTAIN new left knee diagnostic imagery (e.g., x-rays) for the VA examination. *The examiner's review of the body of this Remand is recommended to assist in the application of these remand directives and in avoiding errors that have resulted in deficiencies in the previous VA examination. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of left knee degenerative joint disease with lateral instability. Indicate any and all associated orthopedic AND neurologic manifestations. **In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use and during any flare-ups. (b) Full range of motion testing must be performed where possible. The joints involved should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). **In addition to the above testing, the examiner should also address any ameliorative effects of medications and assistive devices the Veteran uses to treat his knee disabilities. If the examiner is unable to conduct 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. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning. **If the examiner determines that flare-ups cause variable reductions in ROM of the knee, he or she must use information obtained from the Veteran to estimate variations in reduced ROM in terms of degrees. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). (d) State whether or not the Veteran's left knee instability has resolved, and if it has, explain the basis for this determination in the context of the examination findings and prior VA examinations and treatment records during the claim period reflecting left knee instability and buckling. (e) To the extent possible, assess the impact of the Veteran's left knee disabilities on his ability to work. A complete rationale should be provided for all opinions. 3. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.