Citation Nr: 21015795 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-10 693 DATE: March 18, 2021 REMANDED Entitlement to an initial compensable rating for right knee degenerative joint disease with history of meniscal teat (right knee condition) prior to December 15, 2015, and in excess of 20 percent thereafter, is remanded. Entitlement to an initial compensable rating for left knee degenerative joint disease (left knee condition) prior to December 15, 2015, and in excess of 10 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1975 to October 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in September 2018. As an initial matter, during the pendency of this appeal, in a February 2016 rating decision, the Agency of Original Jurisdiction (AOJ) increased the ratings for the Veteran’s right and left knee conditions to 20 percent and 10 percent, respectively, effective December 15, 2015. As this increase does not represent a total grant of benefits sought on appeal, the claim for a higher initial rating remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an initial compensable rating for right knee condition prior to December 15, 2015, and in excess of 20 percent thereafter, is remanded. 2. Entitlement to an initial compensable rating for left knee condition prior to December 15, 2015, and in excess of 10 percent thereafter, 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. First, a remand is warranted to afford the Veteran with an adequate examination regarding the severity of his bilateral knee condition. In March 2019, the Veteran underwent a VA examination in which the examiner noted an abnormal initial range of motion (ROM) bilaterally, with right knee flexion to 95 degrees and extension to 0 degrees, and left knee flexion to 110 degrees and extension to 0 degrees. The examiner also noted that pain was noted on flexion bilaterally, and such pain causes functional loss. Additionally, the examiner noted that pain caused additional functional loss bilaterally following observed repetitive use. However, the documented ROM for observed repetitive use is identical to the documented initial ROM. See March 2019 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). As such, the Board finds the March 2019 examination report to be internally inconsistent and, therefore, inadequate for ratings purposes. Therefore, a remand is warranted to afford the Veteran with an adequate examination regarding the severity of the Veteran’s bilateral knee condition. Second, in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), and where this is an initial rating claim, a remand is necessary to allow the AOJ to obtain a retrospective opinion regarding the severity of the Veteran’s service-connected bilateral knee condition. 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 June 2014 and December 2015 examinations did not specify whether active and passive motion were tested, or whether the results provided were weight-bearing or non-weight-bearing. See June 2014 Knee and Lower Leg Conditions DBQ; December 2015 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 June 2014 examiner noted that repetitive use over time and flare-ups could result in further loss of ROM. However, she declined to offer an opinion as to the resulting ROM, stating that to do so would be speculation as any limitation of ROM would likely vary somewhat from day to day, depending upon the types of activities or repetitions the joint is put through, whether medication is taken, and perhaps weather. See June 2014 Knee and Lower Leg Conditions DBQ. Likewise, the December 2015 examiner noted that pain, fatigue, weakness, and lack of endurance significantly limited functional ability following repetitive use over time, but did not opine as to the resulting ROM. In declining to offer an opinion, the examiner offered a rationale identical to the rationale provided by the June 2014 examiner. See December 2015 Knee and Lower Leg Conditions DBQ. As the June 2014 and December 2015 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 his service-connected bilateral knee condition. Additionally, the Board notes that both the June 2014 and December 2015 examiners declined to offer an opinion as to the ROM following repetitive use over time, in part, because medication could impact such ROM. See June 2014 Knee and Lower Leg Conditions DBQ; December 2015 Knee and Lower Leg Conditions DBQ. However, as the rating criteria potentially applicable to the Veteran’s bilateral knee condition do not explicitly mention the ameliorative effects of medication, such effects should not be taken into account when evaluating his disability. See 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5256-5263; Jones v. Shinseki, 26 Vet. App. 56 (2012). Lastly, the Board notes that the evidence indicates that there may be pertinent private medical records that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran received treatment at Kaiser Permanente. Additionally, in a March 2016 VA Form 9, the Veteran reported that he was in the process of getting an MRI from his local doctor and that he only goes to VA for evaluations. However, no private medical records have been associated with the electronic claims file since August 2013. See Kaiser Permanente records, received August 2013. The evidence also indicates that, in February 2019, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers that provided him with treatment pertinent to his claims. The AOJ also provided the Veteran and his representative with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain the Veteran’s medical records on his behalf. See February 2019 VA Correspondence. To date, the Veteran has not responded to the request. VA’s duty to assist is not a “one-way street,” and a Veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, as a remand of this matter is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. The Veteran is cautioned that failure to cooperate with any requested development may result in the denial of his claim. 38 C.F.R. § 3.655. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, including records relating to treatment at Kaiser Permanente from August 2013 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. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to ascertain the current severity of his bilateral knee condition. 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 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 both 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 EVIDENCED BY THE VETERAN’S VISIBLE BEHAVIOR. If the examiner is unable to conduct the required testing or concludes 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 left 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 left knee conditions from December 2013 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. (f.) In rendering the requested opinions: i. Clearly indicate whether any medications the Veteran used during this period affected the severity of his bilateral knee condition. If so, identify each medication and clearly explain how such medication affects such condition. ii. If Any Medication Was Productive Of Ameliorative Affects, Clearly Identify Such Affects And Opine As To The Severity Of The Veteran’s Bilateral Knee Condition Absent Such Medication. Such Severity Should Be Assessed In Terms Of Limitation To ROM, If Possible. • Any opinion expressed by the examiner should 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 the examiner is unable to offer any requested opinion, the examiner should specifically state why and provide a rationale for the determination. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific reports or opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE 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.