Citation Nr: 21014135 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-19 674 DATE: March 11, 2021 REMANDED Entitlement to a rating in excess of 20 percent for low back disability is remanded. Entitlement to a rating in excess of 10 percent for left knee disability, patellofemoral malalignment with pain, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1987 to November 1991 with service in Saudi Arabia from January 1991 to March 1991. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a January 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a January 2021 hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand.   1. Entitlement to a rating in excess of 20 percent for low back disability 2. Entitlement to a rating in excess of 10 percent for left knee disability An October 1992 rating decision granted service connection for mechanical low back disorder and left knee patellofemoral malalignment with pain, each rated as noncompensably disabling, effective from November 21, 1991. A September 2003 rating decision granted a claim for increase for low back and left knee disabilties and assgined each disability a 10 percent rating from June 24, 2003. A January 2008 rating decision granted a 20 percent rating for low back disabilty from June 25, 2007 and denied a higher rating for left knee disabilty. In October 2016, VA received a claim for increase for the low back and left knee. VA examinations of the low back and left knee were conducted in December 2016. A January 2017 rating decision denied a rating in excess of 20 percent for low back disability and in excess of 10 percent for left knee disability. This appeal arises from the Vetean’s disagreement with the January 2017 rating decision. The Veteran contends that his low back and left knee disabilities warrant higher evaluations than assigned. As his January 2021 Board hearing, the Veteran testified that his back and left knee disability had increased in severity since the Veteran was last examined by VA. He also identified relevant outstanding private treatment records and noted that he obtains his medical care for the back and left knee through a private medical provider. The Veteran testified that he had last seen Dr. David Eakin, a private physician, for his back and knee in April 2019. See Hearing Transcript (January 2021). Private follow-up visit dated May 2019 reflect decreased lumbar lordosis, lumbar spondylosis, and range of motion of the back “decreased 15-20 degrees in flexion” (to 70 or 75 degrees). See Medical Treatment Record – Non-Government (June 2019). Left knee examination documented the Veteran’s reports of occasional locking or catching symptoms and instability or giving way and reflected crepitus, patellofemoral tenderness, flexion of 110 degrees, full flexion and extension, and pain on ambulation. Id. Assessment notes include the following opinion: “I feel that based on current status the patient is 30% disabled from his lower back and 15% for each knee.” Id. Additionally, the Board notes that the examination of the left knee reflects contradictory results (flexion). The Board finds that complete non-VA treatment records pertaining to the back and left knee are not associated with the claims file. Therefore, remand is necessary to afford the Veteran an opporutnity to provide his private treatment records or, alternatively, authorize VA to obtain those on his behalf. 38 U.S.C. § 5103A(b) ; 38 C.F.R. § 3.159(c)(1). The Board also finds that remand is the Veteran’s testimony coupled with the private treatment record suggest that his conditons have materially worsened since the last VA examination. Therefore, remand is necessary to afford him an opportunity to present for new examinations to assess the severity of his service-connected low back and left knee disabilities. See 38 C.F.R. §§ 3.326 , 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Lastly, the Board finds that the December 2016 VA examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Thus, on remand, the new VA examination of these conditions should include retrospective supplemental findings. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a “retrospective” medical opinion to determine the date of onset or severity of a condition in years past); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2017 to the Present. 2. Ask the Veteran to complete VA Form 21-4142 for all non-VA medical providers seen for his back and left knee disability since separation from service, to include David Eakin, D.O. of the Sanford Office. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected low back and left knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s low back and left knee disabilities under the rating criteria. As to the below, if it is not possible to provide a specific measurement of range of motion (ROM) 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). (a) Test the Veteran’s active motion, and passive motion, with weight-bearing and without weight-bearing. Note: The examiner should determine the effective ROM for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. The examiner’s report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED ROM TESTS. If any of these findings are not possible, please provide an explanation. (b) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Note: If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced ROM during flares or repetitive use. Retrospective Findings: Following a review of the record, the clinician should provide retrospective findings for the below identified past examinations. (c) Provide an addendum retrospective opinion for the Veteran’s service-connected left knee disability to supplement the December 2016 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran’s statements. (ii) Estimates the amount in degrees of ROM lost during flare-ups of left knee symptoms based on the evidence of record and the Veteran’s statements. (d) Provide an addendum retrospective opinion for the Veteran’s service-connected low back disability to supplement the December 2016 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran’s statements. (ii) Estimates the amount in degrees of ROM lost during flare-ups of back symptoms based on the evidence of record and the Veteran’s statements. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Edwards 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.