Citation Nr: 21074776 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-37 887 DATE: December 16, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to August 22, 2017, in excess of 20 percent from August 22, 2017 to November 1, 2019, and in excess of 60 percent from December 1, 2020, for service-connected total left knee replacement, previously rated as complex tear lateral meniscus and left knee patellofemoral syndrome with degenerative joint disease (left knee condition), is remanded. Entitlement to a rating in excess of 10 percent prior to August 22, 2017, in excess of 20 percent from August 22, 2017 to May 14, 2019, and in excess of 10 percent from September 1, 2019, for service-connected right knee chondromalacia status past meniscectomy, previously rated as patellofemoral syndrome with degenerative joint disease (right knee condition), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected bilateral knee conditions is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1981 to September 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in April 2021. The Veteran's claims of entitlement to increased ratings for his bilateral knee conditions were also remanded by the Board in August 2018 and September 2019. In November 2017, the Veteran testified before a Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See November 2017 Board Hearing Transcript. In November 2020, the Board notified the Veteran and his representative that the VLJ who conducted the November 2017 hearing was no longer with the Board. The Veteran was offered a new hearing before another VLJ and was provided 30 days within which to respond. See November 2020 Board Correspondence. In December 2020, the Veteran notified the Board that he did not wish to appear at another Board hearing and requested that the Board consider his case on the evidence of record. See December 2020 Correspondence. The Board will proceed accordingly. 1. Entitlement to a rating in excess of 10 percent prior to August 22, 2017, in excess of 20 percent from August 22, 2017 to November 1, 2019, and in excess of 60 percent from December 1, 2020, for service-connected left knee condition, is remanded. 2. Entitlement to a rating in excess of 10 percent prior to August 22, 2017, in excess of 20 percent from August 22, 2017 to May 14, 2019, and in excess of 10 percent from September 1, 2019, for service-connected right knee condition, is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of three prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is necessary as the record indicates that pertinent medical records that are not associated with the claims file. Specifically, the record shows that the Veteran has received treatment for his bilateral knee condition at Womack Army Hospital. However, only excerpts of records relating to such treatment have been associated with the claims file. See Womack Army Hospital records, received December 2019. As such, a remand is warranted to allow the AOJ to obtain pertinent medical records. See 38 U.S.C. §§ 4103(a), (b)(1), 5103A; 38 C.F.R. § 3.159(c); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to allow the AOJ to afford the Veteran with an adequate examination regarding the nature and severity of his service-connected bilateral knee conditions. The Veteran was last afforded a VA examination regarding his bilateral knee conditions in May 2021. See May 2021 VA Knee and Lower Leg Disability Benefits Questionnaire (DBQ). However, as discussed above, potentially relevant medical records have not been associated with the claims file. As such, the May 2021 examination cannot be considered adequate as the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, a remand is necessary to provide the Veteran with an adequate examination. See Barr v. Nicholson, 21 Vet. App. 120, 123 (2007). Lastly, in in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), a remand is necessary to allow the AOJ to obtain a retrospective opinion regarding the severity of the Veteran's service-connected bilateral knee conditions. In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. Here, the August 2011 and December 2013 examinations did not specify whether active and passive motion were tested or whether the results provided were weight-bearing or non-weight-bearing. See August 2011 VA Joints Exam; December 2013 VA Knee and Lower Leg Conditions DBQ. Additionally, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, flare-ups and repetitive use over time affect functional impact. Sharp, 29 Vet. App. at 26. Further, VA examiners are expected to offer opinions on functional loss that would occur during flare-ups and repetitive use over time based on estimates derived from relevant sources, including the Veteran's lay statements. Id. at 34. In other words, stating that the examination was not conducted during a flare-up or following repetitive use over time as the sole rationale for not addressing the functional impacts of such is not sufficient. Here, the August 2011 examination did not address the functional impacts of repetitive use over time or during flare-ups; no rationale was provided. See August 2011 VA Joints Exam. Additionally, the December 2013 examination noted that pain, weakness, fatigability, and incoordination would result in additional functional loss during flare-ups or following repeated use over time; however, the examiner declined to opine as to the resulting range of motion (ROM), stating that the examination was not conducted during such. See December 2013 VA Knee and Lower Leg Conditions DBQ. As the August 2011 and December 2013 examinations did not fully satisfy the requirements of 38 C.F.R. § 4.59, Correia or Sharp, the Board finds that a remand is necessary to obtain a retrospective opinion regarding the severity of the Veteran's service-connected bilateral knee condition. 3. Entitlement to a TDIU is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the AOJ to conduct additional development. Specifically, in its April 2021 decision, the Board found the issue of entitlement to a TDIU to be raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). However, no development on this issue has been completed, including provision of the appropriate notice. Additionally, the evidence indicates that the Veteran may have been employed throughout the appeal period. See May 2021 VRE Correspondence. As such, a remand is necessary to allow the AOJ to properly develop the claim of entitlement to a TDIU, to include the provision of appropriate notices. Lastly, the Board finds the issue of TDIU to be inextricably intertwines with the increased ratings claims remanded herein. As such, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, conduct the following development: (a.) Provide the Veteran with a VA Form 21-8940 and obtain his complete employment history; (b.) Obtain and associate with the claims file the Veteran's verified yearly income for years 2020 to current; and (c.) Obtain and associate with the claims file any pertinent outstanding medical records, whether VA or private, to include records relating to treatment at Womack Army Hospital, as well as records relating to treatment at Fayetteville VA Medical Center from June 2021 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to determine the nature and severity of his service-connected bilateral knee conditions. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. If the Veteran describes flare-ups, document the frequency, severity, and duration thereof. (b.) Test and document the ROM for the left and right knees in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. For each ROM, the examiner is asked to explicitly identify the degree in which pain is first evidence by the Veteran's visible behavior. If the examiner is unable to conduct the required testing or concluded that the required testing is not necessary in this case, a thorough explanation should be provided. (c.) Identify the nature and severity of all current manifestations of the Veteran's service-connected bilateral knee conditions. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (d.) If the Veteran describes flare-ups, after documenting the frequency and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. (e.) Provide a retrospective opinion, utilizing the Veteran's medical records and lay history, and opine as to the severity of the Veteran's service-connected bilateral knee conditions from April 2010 to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to ROM, if possible. If the examiner is unable to render such an opinion, the examiner should specifically state why and provide a rationale for the determination. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.