Citation Nr: 21011408 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-57 930 DATE: March 1, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected left knee strain is remanded. Entitlement to a disability rating in excess of 10 percent for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for a back disability, claimed as secondary to service-connected left knee strain, is remanded. Entitlement to a separate disability rating for left knee instability is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Air Force from August 1988 to January 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013 and May 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. During the January 2020 hearing, the Veteran testified that he experienced instability of his left knee. The Veteran is currently service connected for a left knee strain under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Separate ratings may be assigned for limitation of flexion, extension, instability, and a meniscal disability of the same knee under Diagnostic Codes 5260, 5261, 5257, 5258 or 5259. VAOPGCPRECs 9-04, 9-98, 23-97; Lyles v. Shulkin, 29 Vet. App. 107 (2017). Thus, the issue of entitlement to a separate disability rating for left knee instability is included on the title page. Lastly, in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability. The Court explained, “When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability.” Id. at 454. In this case, the Veteran has not asserted or contended that he is unemployable due to the service-connected left knee strain or COPD. Indeed, during the January 2020 hearing, the Veteran indicated that he was not raising a claim for entitlement to a TDIU. Thus, the issue of entitlement to TDIU benefits is not part and parcel of the underlying increased rating issues on appeal. For these reasons, the issue of entitlement to TDIU benefits is not before the Board at this time and no further action is required.   REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a disability rating in excess of 10 percent for service-connected left knee strain is remanded. The Veteran contends that he is entitled to an increased disability rating for his service-connected left knee strain. The record reflects that the Veteran was last afforded a VA examination for this disability in July 2017, nearly four years ago. During the January 2020 hearing, the Veteran stated that his left knee gives out on him daily, and that he has to hold on to rails when going up and down steps; thus, suggesting that the severity of the disability has worsened. Furthermore, the Board notes that the Veteran also suggested that the previous VA examinations conducted in 2012, 2014, and 2017 were inadequate. He stated that during his previous examinations, the examiner was rude and did not measure anything. The Veteran’s representative stated, “Don’t’ really know if he’s ever really gotten a good range of motion testing.” See January 2020 Hearing Transcript at pg. 7. The representative further stated, “…I really think the severity of his knees has been overlooked on the evaluations performed.” See id. at pg. 8. Thus, based on the foregoing, the Board finds that a more thorough and contemporaneous examination of the service-connected left knee is warranted in order to ensure that the record reflects the current severity of this disability. In addition, the Board notes that, prior to the July 2017 VA examination, the Veteran underwent VA examinations in April 2012 and September 2014. In 2016 and 2017, two precedential opinions were issued by the Court. Retroactive opinions are warranted in this case, as the previous examinations did not fully comply with the requirements of these opinions. On July 5, 2016, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), 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. Thus, the Court’s holding in Correia interprets 38 C.F.R. § 4.59 to establish additional requirements that must be met prior to finding that a VA examination is adequate. The examination reports dated April 2012, September 2014, and July 2017 do not reflect that the examiners addressed all of the Correia requirements. Specifically, the April 2012 and September 2014 examination reports do not provide range of motion measurements of either knee in passive motion. None of the examination reports provide range of motion measurements of either knee in weight-bearing or non-weight-bearing. Moreover, with specific regard to the July 2017 VA examination report, while the examiner reported pain on motion, the point during range of motion where pain started was not noted. Thus, based on the foregoing, the Board finds that the previous VA examinations are inadequate. Furthermore, the Board notes that the Court issued another decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. In Sharp, the Court held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare (i.e., the frequency, duration, characteristics, severity, or functional loss), and such opinion cannot be based on the insufficient knowledge of the specific examiner. In this case, during the April 2012, September 2014, and July 2017 VA examinations, the Veteran reported experiencing flare-ups of the left knee. The April 2012 examiner did not provide an opinion as to whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups. The September 2014 examiner opined that it is more likely than not that pain, but not weakness, fatigability or incoordination, could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. The examiner further stated that there is additional limitation due to pain with change in the baseline range of motion due to “pain on use or during flare-ups.” However, the examiner did not provide an estimate of range of motion during flare-ups, as such would be speculation since the examination was not being conducted during a flare-up. The July 2017 examiner indicated that the examination was not being conducted during a flare-up, and therefore was unable to say without mere speculation as to whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups. Even if the Veteran was not being examined during a flare-up, as noted above, the sole fact that the Veteran is not being examined during a flare-up has been rejected by the Court as an adequate basis for failing to provide an opinion or estimation as to the degree of functional loss or impairment during a flare. See Sharp, at 33. Thus, the Board notes that the previous examinations do not comply with the requirements of Sharp. Thus, in light of the above-stated reasons, the Board cannot properly assess the functional impairment caused by the left knee disability. Consequently, as the previous examination reports for the Veteran’s service-connected left knee strain do not fully satisfy the requirements of Correia, 38 C.F.R. § 4.59, and Sharp, a new examination, to include retroactive opinions, are necessary to decide the claim. 2. Entitlement to a disability rating in excess of 10 percent for COPD is remanded. The Veteran also contends that he is entitled to an increased disability rating for his service-connected COPD. The record reflects that the Veteran was most recently afforded a VA examination to assess the severity of his service-connected COPD in July 2017, nearly four years ago. During the January 2020 hearing, the Veteran indicated that his COPD has been the same since 2010. However, he also indicated that, now, he cannot put on aftershave and his wife cannot wear certain perfumes. Certain scents now cause him to cough and makes it hard to breathe. Furthermore, the Board notes that, in his November 2017 substantive appeal (VA Form 9) the Veteran suggested that the July 2017 examination was inadequate. He stated that, during the examination, he had to take the test multiple times before the examiner got a good reading. He continued by stating, “This is not right because the poor tests were thrown out.” Thus, in light of the Veteran’s statements during the January 2020 hearing, as well as the assertion of the inadequacy of the July 2017 VA examination, the Board finds that a more thorough and contemporaneous examination of the service-connected COPD is warranted in order to ensure that the record reflects the current severity of this disability. 3. Entitlement to service connection for a back disability, claimed as secondary to service-connected left knee strain, is remanded. The Veteran contends that he is entitled to service connection for a back disability, asserting that such is secondary to his service-connected left knee strain. The record reflects that the Veteran was afforded a VA examination for his claimed disability in April 2014. The examiner provided a diagnosis of degenerative arthritis of the spine. The Veteran reported that compensation for his left knee made his back painful. The examiner opined that the back condition is less likely than not proximately due to or the result of the Veteran’s service-connected left knee. The examiner indicated that the back condition is more likely related to normal aging and deterioration from normal use than is related to his knee. His gait is normal. The examiner found no documentation of abnormal gait. The examiner further noted that, without abnormal gait, weight bearing is not typically off far enough to cause back misalignment. During the January 2020 hearing, the Veteran stated that his private physical therapist has noted that his gait is abnormal, causing him to compensate for his left knee. He further stated that his private physical therapist has indicated that his left knee could be the cause of his back condition. The record includes private physical therapy records for the Veteran’s back dated 2012. The May 2012 discharge report shows that the physician noted a normal gait. It is unclear as to whether there are more recent physical therapy records that have not been associated with the claims file. Thus, based on the Veteran’s testimony and the age of the most recent private physical therapy records associated with the file, the Board finds that development should be undertaken for any outstanding private treatment records. Beyond this development, the Board finds that, in light of the Veteran’s statements during the January 2020 hearing, the Veteran should be afforded a new VA examination that considers recent lay statements, as well as any outstanding medical records. 4. Entitlement to a separate disability rating for left knee instability is remanded. Finally, as left knee instability will be addressed during the new VA examination for the left knee as requested in this remand, adjudication of a separate disability rating for instability is deferred pending the findings in the VA examination. On remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relevant to his claims. Note that the record reflects that the Veteran received treatment from a private physician for his claimed back disability. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. If any record identified cannot be obtained, the Veteran should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 3. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his service-connected left knee disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner should provide all information required for rating purposes, to specifically include range of motion of each knee in active motion, passive motion, weight-bearing, and non-weight-bearing. Further, the examiner must indicate if movement is limited by pain, and if so, at what point. The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts he is unable to perform range of motion testing due to pain. 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. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran’s ordinary activity, including his ability to work. The examiner should determine whether the Veteran’s range of motion results from the April 2012, September 2014, and July 2017 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and non-weight-bearing. To the examiner’s best ability, the additional range of motion loss should be described in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran’s functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should also specifically interview the Veteran about the nature of the flare-ups that he reported in the April 2012, September 2014, and July 2017 VA examinations; assess this impairment during flare-ups, and provide a retroactive opinion as to any additional functional loss during flare-ups at that time, and provide an estimate of that loss in terms of degrees reduction in range of motion. Also, the examiner should comment on whether the Veteran has left knee instability. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his service-connected COPD. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner is requested to comment on the severity of the Veteran’s service-connected COPD throughout the rating period. The examiner should discuss the effect of the disability on his occupational functioning and daily activities. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. Then, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must state an opinion as to the following: (a) Identify any and all disabilities pertaining to the Veteran’s back. (b) For any currently diagnosed back disability, the examiner should provide an opinion as to whether it is at least as likely as not related to the Veteran’s military service, to include as secondary to his service-connected left knee strain. In consideration of all of the Veteran’s statements and reports and all pertinent medical records, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that any currently diagnosed back disorder was either caused or aggravated beyond the natural progression by the Veteran’s service-connected left knee strain. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (CONTINUED ON NEXT PAGE) 6. After completing the above development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.