Citation Nr: 21020910 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-41 502 DATE: April 8, 2021 REMANDED Entitlement to a rating in excess of 10 percent for chondromalacia of the right knee with postoperative anteromedial plica and osteoarthritis is remanded. Entitlement to a compensable rating for a stress fracture of the right tibia is remanded. Entitlement to a compensable rating for a stress fracture of the left tibia is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from May 1989 to August 1992. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In June 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board notes that the issue of entitlement to service connection for a left knee disability was previously on appeal. In an October 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for left knee chondromalacia and degenerative arthritis. As the award of service connection represents a full grant of benefits regarding that issue, it is no longer in appellate status. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201; Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The issues on appeal were previously before the Board in December 2019, when they were remanded to the AOJ for additional development. Because the development sought was not fully completed, an additional remand is required. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions). 1. Entitlement to a rating in excess of 10 percent for chondromalacia of the right knee with postoperative anteromedial plica and osteoarthritis is remanded. 2. Entitlement to a compensable rating for a stress fracture of the right tibia is remanded. 3. Entitlement to a compensable rating for a stress fracture of the left tibia is remanded. In its December 2019 remand, the Board requested that the AOJ ask the Veteran to identify and to provide a release for private records, to include those from a Dr. P. whom the Veteran identified at his June 2019 hearing as having treated him for the conditions on appeal. It also directed the AOJ to obtain updated VA treatment records and to afford the Veteran a new VA examination to assess the current severity of his right knee disability and bilateral tibia disorders. In December 2019, the AOJ sent the Veteran a letter and asked him to identify and provide appropriate releases for records of any private treatment, to include records from Dr. P. In January 2019, the Veteran provided a release and identified two private providers (K.E., M.D. and L.B., M.D.) who had treated him for the disabilities on appeal at Ochsner West Bank. While the form used to identify his private care providers also included the name of Dr. P., the Veteran provided no further identifying information regarding that provider, including his first name or initial, the name or address of the facility at which he practices, or the date range of treatment. The RO subsequently determined that it could not obtain records from Dr. P. because there was incomplete identifying information. In this regard, the Veteran is reminded that VA’s duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential to the outcome of his claims. Wood v. Derwinski, 1 Vet. App. 190, 193, recon. denied, 1 Vet. App. 406 (1991) (per curiam). If he is to have a reasonable opportunity to prevail on his claims, he must respond with specificity to VA’s requests for additional information. Otherwise, his claims may be denied. The AOJ obtained updated records from the two private providers properly identified by the Veteran in August 2020. The AOJ also obtained updated VA treatment records in March 2020 and October 2020. Given the efforts outlined above, the Board finds that the AOJ substantially complied with the records development ordered in the December 2019 remand. See Stegall, supra. The Board further finds, however, that the AOJ did not afford the Veteran a fully adequate VA examination in connection with his claims. As such, another remand is necessary. Id. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire as to whether there are periods of flare-ups and, if so, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Sharp at 32. The Court further explained that in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination is “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). The Veteran was afforded a VA examination in March 2020. He reported that he had daily knee pain and that the average pain level was a five on a pain scale of 1 to 10. He further reported that he had flare-ups of his knees, that his right knee went to an 8 on a pain scale of 1 to 10 during flare-ups, that flare-ups occurred 3 to 4 times per week, and that activity made them worse. He described his functional loss or functional impairment as difficulty climbing stairs, any increased activity made his knee pain worse, and that as a mechanic his knees get very painful when standing at work. The examiner noted that the examination was not being conducted during a flare-up and indicated that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. He further indicated, however, that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional ability with flare-ups, and made no attempt to estimate functional loss in terms of range of motion during a flare-up. The Board finds that the March 2020 VA examiner did not adequately take into consideration the Veteran’s reports regarding flare-ups at the time of the examination. The Veteran clearly stated that he had flare-ups which resulted in increased pain and increased functional impairment, yet the examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit his functional ability with flare-ups. The examiner’s failure to estimate additional functional loss in terms of range of motion, or to explain why no estimation could be made, renders the exam less than fully adequate. Under the circumstances, a new examination is required. See Stegall, supra; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, VA must ensure that the examination provided is adequate). The Board also notes that the claims file indicates that there are remaining outstanding private treatment records relevant to the issues on appeal. As noted above, the AOJ obtained treatment records from two providers at Ochsner West Bank in September 2020. In August 2020, it also obtained records from a Dr. F., who practices at Ochsner South Shore Region LA in Gretna, Louisiana. The Board notes that the most recent record from Dr. F. in the claims file is dated in October 2018. In a February 2020 VA treatment record, providers noted that the Veteran saw both Drs. F. and Dr. J. at ‘Ochsner’ for his knee disabilities. Inasmuch as the records from Dr. F. in the claims file date only through October 2018, and the claims file does not contain any records from Dr. J., the Board finds that on remand, further efforts to obtain copies of private treatment records should be made. Updated records of any VA treatment should also be procured. See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Ask the Veteran to provide a release for relevant records of treatment from Drs. F. and J. at Ochsner South Shore Region LA in Gretna, Louisiana and to identify, and provide appropriate releases for, any other care providers who may possess additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination to assess the current severity of his right knee and bilateral tibia disorders. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examiner must attempt to elicit information regarding functional loss due to flare-ups. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.