Citation Nr: 21006006 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-19 164 DATE: February 3, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability, based limitation of flexion, is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disability, based limitation of flexion, is remanded. Entitlement to a separate compensable disability rating for right knee instability prior to October 11, 2018, and in excess of 10 percent thereafter, is remanded. Entitlement to a separate compensable disability rating for left knee instability prior to October 11, 2018, and in excess of 10 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to November 1978. He appeals a November 2010 rating decision by the Agency of Original Jurisdiction (AOJ) granting service connection for a right and left knee disability and assigning a 10 percent rating for each and denying entitlement to service connection for a back disability. This case was previously before the Board in March 2018 and remanded for additional development. Subsequently, in an August 2020 rating decision, the AOJ granted a separate 10 percent rating for right and left knee instability effective October 11, 2018. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As such, the case has returned to the Board for further appellate proceedings. However, as explained below, the Board finds that another remand is necessary in order to provide the Veteran with adequate examinations and/or opinions. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Bilateral Knees The Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Court’s precedent in Sharp v. Shulkin, 29 Vet. App. 26 (2017). At the Veteran’s October 2018 VA examination, he described significant flare-ups and functional loss related to his bilateral knee disability. Specifically, he stated that flare-ups occur daily and last for hours. He described them as causing loss of ambulation and standing tolerance. However, when determining whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or with repetitive use over time, the October 2018 VA examiner determined he could not say without resorting to mere speculation, as “no flare-ups were present or seen during examination. Hence; an opinion concerning additional range of motion loss during flare-ups is not feasible, since in order to provide an additional limitation due to pain, weakness or incoordination (if present) the evaluation must be done in a present [sic] of a flare-up.” See October 2018 VA examination report. In Sharp v. Shulkin, the Court held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not “estimate the [Veteran’s] functional loss due to flares based on all the evidence of record (including the [Veteran’s] lay information) or explain why [he or she] could not do so.” 29 Vet. App. 26, 35 (2017). Here, the examiner’s opinion is inconsistent with the Veteran’s credible statements regarding flare-ups that make it difficult to perform daily activities such as loss of ambulation and ability to stand. See October 2018 VA examination report. Further, the Court in Sharp rebuffs such an explanation, and an additional VA examination of the Veteran’s bilateral knee disability must be scheduled to comply with Sharp. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303 (d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 2. Back Disability The Veteran contends that he incurred a back disability in service. See September 2010 Veteran Statement; see also February 2013 Veteran Statement. Alternatively, the Veteran also asserts that he has a back disability that was caused or aggravated by his service-connected left ankle and bilateral knee disabilities. See February 2017 VA Form 9; see also September 2020 Veteran Statement. The March 2018 Board remand directives asked for both a direct and secondary service connection opinion from the examiner regarding the Veteran’s back disability. When opining as to the question of aggravation, the examiner stated that the Veteran’s back disability “clearly and unmistakably existed prior to service,” which it did not. See October 2018 VA examination report. The Board finds that this misstatement is not only erroneous, but also does not adequately respond to the question posed within the March 2018 remand directives. As the examiner did not properly follow the Board’s directives regarding the question of aggravation, the Board finds that there has not been substantial compliance with the prior directives and remand is necessary in order to obtain a new opinion regarding the etiology of the Veteran’s back disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral knee and back disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After completing directive #1 above, schedule the Veteran for an examination of the current severity of his bilateral knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing for both knees. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 3. After completing directive #1 above, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s back disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the reviewing clinician, he or she should identify all back disabilities present. Then, he or she is asked to respond to the following inquiries: (a.) Is it at least as likely as not that the Veteran’s back disability was incurred in, or is otherwise related, to his time on active service? The reviewing clinician should specifically address the August 1976 and November 1977 notations in the Veteran’s STRs regarding treatment for back pain. (b.) Is it at least as likely as not that the Veteran’s back disability was caused or aggravated by his bilateral knee or left ankle disabilities? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing directives #1-3 above to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.