Citation Nr: 21022310 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-19 985 DATE: April 15, 2021 REMANDED Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for a lower back disability is remanded. Entitlement to service connection for right ankle disability is remanded. Entitlement to a disability rating in excess of 30 percent for status post arthroscope repair of the left knee is remanded. Entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to a disability rating in excess of 10 percent for status post meniscectomy of the right knee is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee s remanded. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1989 to August 1989 and from March 1990 to April 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in September 2018 for further development. 1. Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for a lower back disability is remanded. In its September 2018 remand directives, the Board instructed the RO to obtain outstanding VA records, to include an April 26, 2005 rating decision, and April 30, 2006 VA letter, a July 10, 2006 rating decision, and a July 17, 2006 VA letter. However, review of the record shows that the only attempt the RO made to obtain these missing VA records was to request them from the Veteran, instead of the proper custodian of those records, the RO that would have issued these documents. See 38 C.F.R. § 3.159(c). As such, a remand is required to allow VA to obtain these outstanding records. 2. Entitlement to service connection for right ankle disability is remanded. In its September 2018 remand directives, the Board instructed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of his right ankle disability. In October and November 2019, VA attempted to schedule the Veteran for this examination, but they were cancelled because he failed to report for his examinations. Review of the record shows that the Veteran was incarcerated from August 2019 to January 2020 and from June 2020 to September 2020. The Board finds that good cause has been shown for the Veteran’s failure to appear at his scheduled VA examinations. 38 C.F.R. § 3.655. Further, in the March 2021 appellate brief, the Veteran indicated that he would be able to attend any future examinations. As such, a new VA examination is warranted. 3. Increased Ratings for Bilateral Knee Disabilities In its September 2018 remand directives, the Board instructed the RO to schedule the Veteran for a VA examination to determine the current severity of his knee disabilities. While the Veteran underwent an examination in May 2019, VA attempted to schedule additional examinations in October and November 2019, VA, but they were cancelled because he failed to report for his examinations. Review of the record shows that the Veteran was incarcerated from August 2019 to January 2020 and from June 2020 to September 2020. The Board finds that good cause has been shown for the Veteran’s failure to appear at his scheduled VA examinations. 38 C.F.R. § 3.655. Further, in the March 2021 appellate brief, the Veteran indicated that his knee disabilities had worsened since his last VA examination. The Board notes that the Veteran last underwent a VA examination for his knee disabilities in May 2019, approximately two years ago. As such, a new VA examination is warranted. Caffrey v. Brown, 6 Vet. App. 377 (1994). 4. Entitlement to a TDIU is remanded. The Board finds that the claim of entitlement to TDIU is inextricably intertwined with the remanded claims. The appropriate remedy for an inextricably intertwined issue is to remand it pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA records, to include the April 26, 2005 rating decision, the April 30, 2006 VA letter, the July 10, 2006 rating decision, and the July 17, 2006. The AOJ should attempt to obtain these records from the RO that would have issued them. Any negative response received should be associated with the claims file. 2. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Thereafter, schedule a VA examination to determine the nature and etiology of the Veteran’s right ankle disability with an appropriately qualified examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the claims file, the examiner should address the following: (a) Provide the diagnoses for right ankle disabilities. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right ankle disability was due to the Veteran’s military service. (c) Opine as to whether the Veteran’s right ankle ankylosis manifested within one year after service. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right ankle disability was due to a service-connected disability, to include the Veteran’s service-connected bilateral knee disabilities. (e) Opine whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right ankle disability was permanently aggravated beyond the normal course of the condition by a service-connected disability, to include the Veteran’s service-connected bilateral knee disabilities. In providing answers to the above questions, the examiner should consider the Veteran’s competent lay statements regarding observable symptomatology. In providing answers to the above questions, the examiner should also consider the medical treatise evidence filed by the Veteran’s representative. All opinions expressed must be accompanied by a clear and complete rationale. 4. Schedule the Veteran for a VA examination to address the severity of his left and right knee disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is to review the entire claims file, to include a copy of this REMAND. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of the Veteran’s left and right knee symptoms, and the effect of pain on range of motion. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his knee symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner finds that there is left and/or right knee subluxation or instability, the s/he must address the following: (a) Whether there is recurrent subluxation or instability that is due to a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) and a medical provider prescribed the use of a brace and/or assistive device (i.e., cane, crutches, walker) and/or bracing for ambulation. (b) Whether there is patellar instability that is a diagnosed condition involving the patellofemoral complex with recurrent instability, with or without a history of surgical repair, and a medical provider prescribed the use of a brace, cane, and/or walker. The examiner is advised that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Further, a surgical procedure that does not involve repair of one or more patellofemoral component that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). A full and complete explanatory rationale must be provided for any opinion offered. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. 5. Thereafter, readjudicate the issues on appeal. James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.