Citation Nr: 21027044 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 07-31 329A DATE: May 4, 2021 REMANDED Entitlement to an initial compensable rating prior to March 20, 2006, a rating in excess of 30 percent from March 20, 2006 to May 8, 2006, and in excess of 10 percent from July 1, 2006, forward (excluding periods of temporary total ratings) for instability from left knee status post anterior cruciate ligament reconstruction is remanded. Entitlement to an initial compensable rating for functional impact of right knee benign tumor excision is remanded. Entitlement to a rating in excess of 10 percent for right knee tumor excision scar is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from June 1995 to July 2005, in the U.S. Air Force from January to July 2006, and the U.S. Army from October 2014 to September 2015. He also had reserve service. All of the issues are remanded to ensure there is a complete record for appellate adjudication. Specifically, the July 2010 Supplemental Statement of the Case (SSOC) lists a September 2007 Statement of the Case (SOC) and October 2007 substantive appeal for the issues of the left and right knees and right knee scar. However, those documents are not part of the electronic record, which suggests that an incomplete version of the Veteran's claims file at the Department was uploaded electronically. On remand, the Agency of Original Jurisdiction (AOJ) should ensure that the Veteran's complete claims file is associated with his electronic records, and if documents, such as the September 2007 SOC and October 2007 substantive appeal cannot be located, results should be documented in the file and communicated to the Veteran. 1. Entitlement to an initial compensable rating prior to March 20, 2006, a rating in excess of 30 percent from March 20, 2006 to May 8, 2006, and in excess of 10 percent from July 1, 2006 forward (excluding periods of temporary total ratings) for instability from left knee status post anterior cruciate ligament reconstruction is remanded. 2. Entitlement to an initial compensable rating for functional impact of right knee benign tumor excision is remanded. In addition, remand is required for a new knee examination. As a preliminary matter, the Board notes that the issue on appeal for the right knee is entitlement to an initial compensable rating for right knee benign tumor excision under Diagnostic Code 7819. The Veteran was subsequently also granted service connection for anterior horn medial meniscus tear of the right knee, which was rated 10 percent disabling under Diagnostic Codes 5010-5260, but that award was made separately based on a period of the Veteran's reserve service in an unappealed June 2010 rating decision. During the September 2020 Board hearing, the Veteran reported that his knee condition had worsened in the past years. His last VA examination was in November 2018. Accordingly, a new examination would be helpful to best assess his current disability picture. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (VA should provide a new examination when the evidence indicates there has been a material change in disability or that the current rating may be incorrect). Additionally, the Veteran reported flare-ups in knee symptoms during the May 2010, June 2011, September 2016, and November 2018 examinations. The examiners in June 2011, September 2016, and November 2018 stated that they could not address functional loss during flare-ups without resorting to speculation. In Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the Court of Appeals for Veterans Claims (CAVC) held that an examiner must try to ascertain information about flare-ups through alternative means, including asking the Veteran to describe additional functional loss and estimating based on his reports, and only then after considering all the lay and medical evidence, can the examiner explain why he or she cannot render an opinion. Moreover, the CAVC 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). The examinations of record do not provide passive range of motion measurements or fully address weight-bearing and nonweight-bearing. 3. Entitlement to a rating in excess of 10 percent for right knee tumor excision scar is remanded. The new examination for the knees will likely provide evidence on the scar as well, and that issue is intertwined. 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. As noted above, the psychiatric claim is remanded to ensure the Board has a complete record for review. As noted by the undersigned in the Board hearing, the record does not show diagnosis of an acquired psychiatric disorder during the period on appeal. The Veteran's service treatment records show complaints of and treatment for major depressive disorder in September 2004 and January 2005. His DD Form 214 shows he received, among many decorations, the Navy and Marine Corps Achievement Medal (Combat V) and the Combat Action Ribbon, which corroborate his reports of combat-related stressors in service. See 38 C.F.R. § 3.304(f)(2). However, the Veteran was afforded two VA mental health examinations in March 2012 and January 2017 from which neither examiner found he met the diagnostic criteria for a mental health disability. On remand, the Veteran has the opportunity to submit additional evidence of a current disability. The matters are REMANDED for the following action: 1. Ensure that the Veteran's complete VA claims file has been associated with his electronic claims file, including the September 2007 SOC and October 2007 substantive appeal. If all records cannot be obtained, results should be documented in the claims file and communicated to the Veteran. 2. Obtain a new examination for the Veteran's knees. The examiner should report all signs and symptoms necessary for evaluation of the Veteran's knee disabilities under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) on active motion and passive motion and with the effects of pain, if present, in weight-bearing and nonweight-bearing. For the right knee, the examiner should identify the presentation of symptoms and functional impairment specifically related to the right knee benign tumor excision. If the examiner is unable to conduct the required testing or concludes the required testing is not necessary in this case, he or she should clearly explain why that is so. 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. The examiner is asked to describe how pain could significantly limit functional ability during flares at the time of the May 2010, June 2011, September 2016, and November 2018 examinations and currently (if reported) and estimate in terms of degree of range of motion, if possible. 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 his 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. J. NICHOLS Acting 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.