Citation Nr: 21024173 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-28 316A DATE: April 22, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee limitation of flexion is remanded. Entitlement to a rating in excess of 10 percent for right knee limitation of extension is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army and Navy Reserves. 1. Entitlement to a rating in excess of 10 percent for right knee limitation of flexion is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee limitation of extension is remanded. An additional examination is needed for the knee disability. The Veteran had examinations of her right knee in July 2012, October 2019, and September 2020. The Veteran denied experiencing flare-ups during the July 2012 examination. During the October 2019 examination, she reported daily flare-ups, and the examiner found she did not experience pain with weight-bearing or non-weight-bearing. When the Veteran again reported flare-ups in September 2020, the examiner provided an estimate on the amount of additional limitation the Veteran would experience during a flare-up and after repeated use over time. However, the examiner found the Veteran would experience pain with weight-bearing but did not address how pain could affect motion during weight-bearing. Moreover, none of the examiners provided test results for passive range of motion. The Court of Appeals for Veterans Claims in Correia found that for disabilities rated based on limitation of motion, an examination is inadequate if it does not consider “active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint” in accordance with 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Remand is needed to obtain measurements of the Veteran’s passive range of motion, if medically advisable, and the effects of pain on range of motion while weight-bearing, for example during squatting. See id. 3. Entitlement to service connection for an acquired psychiatric disorder is remanded. Additional remand for the psychiatric claim is necessary. The record shows the Veteran has posttraumatic stress disorder (PTSD) and major depressive disorder. The Veteran asserts that her mental health was affected by belittling and degrading treatment by an in-service physician. First, the record shows the Veteran served in the Army Reserves from December 1987 to November 1988 and Navy Reserves from April 2000 to February 2003, but a complete list of the Veteran’s periods of active duty training (ADT) and inactive duty training (IDT) do not appear to be in the record. The Agency of Original Jurisdiction (AOJ) should obtain the Veteran’s personnel records documenting her dates of ADT and IDT. Next, the Veteran has had multiple VA mental health examinations with opinions. Most recently, a VA examiner in September 2020 opined that the Veteran’s mental health disabilities were less likely than not due to service, because the Veteran was having PTSD symptoms prior to service, which were secondary to abuse she suffered as a child, and the onset of her depressive disorder was several years after service in 2009. The examiner noted that the encounter with the physician who degraded her perhaps related to some extent to her PTSD, particularly to self-worth and estrangement from others. The Veteran agreed that her mental health problems began with the abuse she experienced as a child but contended she was also traumatized by a high-ranking medical professional verbally abusing and degrading her. See June 2020 correspondence. It appears from the evidence that the Veteran clearly and unmistakably had a pre-existing mental health trauma prior to entering service and that she had a disturbing interaction with an in-service physician. Yet, no examiner has opined as to whether there is clear and unmistakable evidence that the Veteran’s pre-existing PTSD was not aggravated (worsened) by events during her service and instead progressed naturally according to the disease process. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Moreover, the September 2020 examiner’s opinion on depressive disorder relied on the fact that the Veteran was not diagnosed with depressive disorder until 2009. However, the record shows complaints of depression on an October 2005 treatment record. As the examiner’s opinion appears to be based on an inaccurate factual premise, the opinion holds limited probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The AOJ should also obtain a new medical opinion for the Veteran’s mental health claim. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain the Veteran’s personnel records documenting her dates of ADT and IDT. 3. Obtain an addendum opinion from the September 2020 examiner with clinical interview or a new knee examination if necessary. The examiner should provide range of motion test results (in degrees) based on passive motion and during weight-bearing. The examiner should specifically indicate whether the Veteran experiences any limitation of motion that is attributable to pain and at what point during the range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If a new examination takes place and the Veteran reports flare-ups and pain with non-weight-bearing, the examiner should address how pain could affect functioning, specifically range of motion, during flare-ups and non-weight-bearing. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 4. Obtain an addendum opinion for the Veteran’s mental health claim. The medical expert should review the claims file and address the following: a. Was the Veteran’s pre-existing PTSD clearly and unmistakably NOT aggravated by her service, particularly the degrading treatment by a service physician? b. Is her depressive disorder at least as likely as not related to or contemporaneous with her service, including the degrading treatment by a service physician and her subsequent medical discharge? Consider all relevant lay and medical evidence, including the Veteran’s reports of the progression of her symptoms and the effects of the interaction with the service physician, as well as the October 2005 treatment record showing complaints of depression. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong 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.