Citation Nr: 21013733 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-25 472 DATE: March 10, 2021 REMANDED Entitlement to a rating higher than 10 percent for degenerative arthritis with meniscus tear of the right knee is remanded. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) and alcohol abuse, episodic, is remanded. Entitlement to a rating higher than 10 percent for right knee scars is remanded. Entitlement to a rating higher than 10 percent for right knee instability is remanded. Entitlement to a rating higher than 30 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a rating higher than 10 percent for cervical spine spondylosis is remanded. Entitlement to a rating higher than 20 percent for degenerative arthritis of the thoracic spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 2004 to March 2009, with service in Southwest Asia. He received a Combat Action Badge, among other awards and decorations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Houston, Texas (Agency of Original Jurisdiction (AOJ)). This appeal was previously before the Board in November 2019. At that time, the appeal included the issues of entitlement to a separate compensable rating for right knee symptomatic removal of the semilunar cartilage and entitlement to a TDIU. In that decision, the Board granted a 10 percent rating for right knee symptomatic removal of semilunar cartilage; that rating has been implemented by way of a June 2020 rating decision. This decision represents a full grant of benefits sought on that issue. The November 2019 Board decision also remanded the issue of entitlement to TDIU. The RO continues to develop that claim. Thus, neither issue is presently before the Board for appellate adjudication. The remaining claims for increased ratings were denied. The Veteran timely appealed the denials to the Court of Appeals for Veterans Claims (CAVC). In an August 2020 Joint Motion for Remand (JMR) the parties agreed that the Board failed to ensure adequate due process and provide adequate reasons and bases for the denials. In an August 2020 Order, the Court granted the parties’ Motion and remanded the claims for action consistent with the terms of the JMR. The claims are now before the Board for additional adjudication. For the reasons that follow, the Board finds that remand is required for actions consistent with the JMR. REASONS FOR REMAND Orthopedic Disabilities The Veteran is seeking higher disabilities ratings for his right knee degenerative arthritis, right knee instability, right knee scars, thoracic spine, and cervical spine disabilities. Consistent with the JMR, the Board finds that remand is necessary to afford the Veteran a contemporaneous examination to assess the current severity of his orthopedic disabilities. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). In evaluating the Veteran’s orthopedic disabilities, the examiner should provide passive range of motion measurements and pain on weight-bearing testing. The examiner should also attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Correia v. McDonald, 28 Vet. App. 158, 168 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). PTSD and GERD The issues must be remanded to afford the Veteran contemporaneous VA examinations. The Board notes the Veteran was last afforded VA examinations to assess the severity of his service-connected PTSD and GERD disabilities in July 2019. To ensure the record reflects the current severity of the Veteran’s service-connected PTSD and GERD on appeal, a more contemporaneous examination is warranted. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). Procedural Due Process Upon remand, the RO should ensure that the Veteran’s representative is provided with a complete copy of the Veteran’s claims file, to include the above-requested examinations. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria (5010-5260 for degenerative arthritis, 5257 for right knee instability, and 7804 for right knee scars). In doing so, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). The examiner should 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 based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). Finally, the examiner is advised that the criteria of DC 5257 were amended, effective February 7, 2021. The examiner must provide a complete examination of this disability in accordance with both the old and new regulations. For the examiner’s convenience, the new criteria are provided here: (a.) Does the Veteran present with recurrent subluxation or lateral instability, as follows: (i.) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; or (ii.) One of the following: -Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or -Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation); or (iii.) Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. (b.) Does the Veteran present with patellar instability, as follows: (i.) A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker; or (ii.) A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker; or (iii.) A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected thoracic and cervical spine disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria (5237). In doing so, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). The examiner should 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 based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria (9411). The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected GERD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria (7346). [CONTINUED ON NEXT PAGE] 5. Upon completion of requested development, the AOJ should verify the mailing address of the Veteran’s representative (and update as necessary throughout VA systems) and then ensure that the Veteran’s representative is provided a complete copy of the Veteran’s claims file. Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.