Citation Nr: 21025672 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 20-19 709 DATE: April 28, 2021 REMANDED Entitlement to a rating in excess of 30 percent for a left knee disability, status post total knee replacement, is remanded. Entitlement to a rating in excess of 30 percent for a right knee disability, status post total knee replacement, is remanded. Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected right knee, left knee, and right ankle disabilities, is remanded. Entitlement to service connection for a right eye injury is remanded. Entitlement to service connection for an injury to the right side of the face is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1965 to December 1966. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran presented testimony during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. As a preliminary matter, several VA-generated pieces of evidence, to include relevant VA examinations, have been added to the Veteran’s claims file since the most recent Agency of Original Jurisdiction (AOJ) review of these matters, in the April 2020 Statement of the Case. During the hearing, the Veteran’s representative elected not to waive AOJ review of this evidence. Accordingly, a remand is necessary for AOJ review of this evidence in the first instance. 38 C.F.R. § 19.37. Right Side Face and Right Eye In the Veteran’s initial May 2018 claim, he indicated that he was seeking service connection for an injury to the right side of his face and for an injury to his right eye. In his May 2019 Notice of Disagreement, the Veteran asserted that he expressed disagreement with the denial of service connection for the right side of the face, but also added that he was seeking service connection for residuals of a traumatic brain injury (TBI), headaches, and tinnitus. In April 2020 correspondence, the AOJ informed the Veteran that he needed to file separate claims for a TBI, headaches, and tinnitus. The Veteran filed a claim for these disabilities in July 2020. Thus, the Veteran’s claim for residuals of an injury to the right side of his face that is currently before the Board, does not include any TBI, headaches, or tinnitus that results from that injury. The Board notes that in a June 2009 statement, the Veteran reported that he had received treatment for injuries during service at the Berlin Sports Complex and while playing for the United States Army teams at Fort Gordon, Georgia. It does not appear that the AOJ made attempts to locate these records. It does appear that the AOJ initiated an additional request for STRs in January 2020. Thus, on remand, the AOJ should attempt to obtain these records. Right Knee and Left Knee The Board observes that VA recently revised the rating criteria for Diagnostic Codes pertaining to the knee, including Diagnostic Codes 5055, 5256, and 5257. 85 Fed. Reg. 76453 (Nov. 30, 2020). The Veteran was most recently examined in December 2020 for his knees, which was prior to the effective date of the revisions. As such, the examinations do not contain certain findings that would be necessary to assign ratings consistent with the new diagnostic criteria. In addition, some of these revisions are potentially substantive changes and require AOJ review in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, a remand is necessary to obtain examinations that address the current severity and manifestations of the Veteran’s right and left knee disabilities. Left Ankle During the February 2021 Board hearing, the Veteran’s representative asserted that the Veteran’s left ankle disability was related to his service-connected right hip, right ankle, and bilateral knee disabilities. In a June 2020 opinion, the examiner opined that it was less likely than not that the Veteran’s left ankle disability was proximately due to or the result of the Veteran’s service-connected bilateral knee disabilities. However, the examiner did not address whether the Veteran’s service-connected right ankle and right hip disabilities could have caused or aggravated his left ankle disability. In addition, the examiner did not address whether the Veteran’s bilateral knee disabilities aggravated his left ankle disability. Where an opinion as to secondary service connection is provided, the opinion must address both proximate causation and aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). As such, a remand is warranted for an addendum opinion that adequately addresses the Veteran’s secondary service connection claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA and private treatment records. The AOJ should specifically attempt to obtain records of any treatment received at the Berlin Sports Complex and at Fort Gordon, Georgia, if available. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination of the current severity of his right and left knee disabilities as well as the right ankle. The examiner should address limitation of motion and any other disorder present in the Veteran’s knees. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: active motion; passive motion; weight-bearing; and nonweight-bearing. A complete rationale must be provided for the opinions. 3. Forward the claims folder to a qualified examiner for an addendum opinion regarding the nature and etiology of the Veteran’s left ankle disability. The examiner should address the following questions: (a) Is it at least as likely as not (i.e., a 50 percent or greater possibility) that any diagnosed left ankle disability had its onset during active duty, or is otherwise etiologically related to his active duty service? (b) Is it at least as likely as not (i.e., a 50 percent or greater possibility) that any diagnosed left ankle disability is caused by the Veteran’s service-connected right ankle, bilateral knee, or right hip disabilities OR (c) Is it at least as likely as not (i.e., a 50 percent or greater possibility) that the Veteran’s service-connected right ankle, bilateral knee, or right hip disabilities has caused any additional functional impairment of the left ankle (e.g., additional limitation of motion, or limitation of function beyond the expected baseline of disability, even if temporary). In rendering this opinion, the examiner should address the testimony provided during the February 2021 Board hearing. If an examination is needed, one should be scheduled. All opinions expressed must be supported by complete rationale. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Saikh, 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.