Citation Nr: 21016201 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 18-12 677 DATE: March 22, 2021 REMANDED Entitlement to a rating in excess of 20 percent for the service-connected degenerative arthritis of the right ankle is remanded. Entitlement to a rating in excess of 20 percent for the service-connected left ankle, status post-surgery is remanded. Entitlement to a rating in excess of 10 percent for the service-connected degenerative arthritis of the right knee is remanded. Entitlement to a rating in excess of 10 percent for the service-connected degenerative arthritis of the left knee is remanded. REASONS FOR REMAND The Veteran had active service from May 1964 to May 1968 and from February 1976 to November 1992. In January 2021, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). Entitlement to a rating in excess of 20 percent for the service-connected degenerative arthritis of the right ankle Entitlement to a rating in excess of 20 percent for the service-connected left ankle, status post-surgery Entitlement to a rating in excess of 10 percent for the service-connected degenerative arthritis of the right knee Entitlement to a rating in excess of 10 percent for the service-connected degenerative arthritis of the left knee As an initial matter, the Veteran testified before the Board in January 2021 that he was in physical therapy with a private provider for issues with walking due to his service-connected bilateral knee and ankle disabilities. These treatment records have not been associated with the claims file. In addition, a medical treatment note submitted by the Veteran’s representative in June 2016 suggests that there are additional outstanding private treatment records related to the conditions on appeal. Further, the Veteran’s VA treatment records have not been updated in the claims file since 2015. Given that these updated/unassociated records could all contain information which could help substantiate the Veteran’s appeals, they should be obtained. Additionally, the Veteran was last examined by VA for these conditions in September 2015, over five years ago. Thus, on remand, he should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of these disabilities. Accordingly, these matters are REMANDED for the following actions: 1. Obtain VA treatment records from March 2015 through the present. 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his bilateral ankle and bilateral knee disabilities. The Board is particularly interested in copies of records of pertinent private physical therapy that the Veteran has received (and that he referenced at the January 2021 hearing) as well as copies of records of relevant private medical care that the Veteran has received (and that were referenced in the June 2016 statement from the Veteran’s representative). Make two requests for all authorized records from each provider for all records which have not yet been obtained and associated with the claims file, unless it is clear after the first request that a second request would be futile. 3. After obtaining any outstanding records related to the Veteran’s claims (pursuant to paragraphs 1 and 2 above), schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria, specifically, 5260 and 5261 for limitation of motion and 5257 for instability, in light of the Veteran’s contentions. 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 these disabilities 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: a. 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 b. One of the following: i. 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 ii. 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: a. 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 b. 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 c. 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. A rationale for all requested opinions shall be provided. 4. Also, after obtaining any outstanding records related to the Veteran’s claim (pursuant to paragraphs 1 and 2 above), schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral ankle disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. 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). A rationale for all requested opinions shall be provided. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.