Citation Nr: 21040518 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 18-20 081 DATE: July 5, 2021 ORDER 1. Entitlement to an effective date prior to December 24, 2002 for the grant of service connection for degenerative arthritis of the right knee with meniscal tear is denied. 2. Entitlement to an effective date prior to December 24, 2002 for the grant of service connection for degenerative arthritis of the right knee with limitation of extension is denied. 3. As new and material evidence has been received, the application to reopen the claim for entitlement to service connection for a psychiatric disorder is granted. REMANDED 4. Entitlement to service connection for a left hand disability, to include as secondary to the bilateral knee disability, is remanded. 5. Entitlement to service connection for a psychiatric disorder, to include as secondary to the bilateral knee disability, is remanded. 6. Entitlement to a rating in excess of 10 percent for degenerative osteoarthritis of the right knee with meniscal tear under Diagnostic Code 5257 is remanded. 7. Entitlement to a compensable rating for degenerative osteoarthritis of the right knee with limitation of extension under Diagnostic Code 5261 is remanded. 8. Entitlement to a rating in excess of 20 percent for mild degenerative joint disease and knee tendonitis of the left knee (left knee disability) under Diagnostic Code 5258 is remanded. 9. Entitlement to compensable rating for the left knee disability under Diagnostic Code 5261 is remanded. 10. Entitlement to a compensable rating for the left knee scar is remanded. 11. Entitlement to a rating in excess of 10 percent for degenerative arthritis and tenosynovitis of the left foot (left foot disability) is remanded. 12. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a February 11, 1996 rating decision, the RO deferred the claim for service connection for a right knee disability pending the scheduling of a VA examination. Pages 2 and 3 of the February 11, 1996 rating decision were accidentally dated as February 11, 1997. 2. In an August 1996 rating decision, the RO denied service connection for a right knee disability based on the Veteran's failure to report for a scheduled VA examination in May 1996. The Veteran was notified at that time of the denial at his address of record, along with his appeal rights, and he did not appeal the August 1996 decision. That decision is final. 3. On December 24, 2002, the Veteran filed an application to reopen the claim for service connection for a right knee disability. 4. Between August 1996 and December 2002, there was no pending claim for service connection for a right knee disability. 5. At the time of the October 2011 rating decision, which granted service connection for right knee disabilities and assigned an effective date of December 24, 2002, the correct facts, as they were known at the time were before VA, and the statutory and regulatory provisions extant at the time were correctly applied. 6. In a September 1982 rating decision, service connection for a psychiatric disorder was denied based on a finding that the Veteran did not have a psychiatric disorder that was at least as likely as not related to service or a service-connected disability. 7. Evidence submitted since the September 1982 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for finding CUE in the October 2011 rating decision assigning a December 24, 2002 effective date for the grant of service connection for right knee disabilities are not met. 38 U.S.C. §§ 5109A, 5110 (2012); 38 C.F.R. §§ 3.105, 3.400 (2020). 2. The September 1982 rating decision denying service connection for a psychiatric disorder is final. New and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to March 1980. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in September 2020. A transcript of the hearing was prepared and associated with the claims file. The record was left open for 60 days to allow the Veteran to submit additional evidence and argument, which were submitted. Concerning the claim for service connection for a psychiatric disorder, claimed as depression, mental chronic pain second to unemployability, and chronic pain to include irritability and depression, the Board notes that the Veteran had previously filed a claim for a nervous condition. In Clemons v. Shinseki, the U.S. Court of Appeals for Veterans Claims (Court) noted the Board should consider alternative current disorders within the scope of the filed claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has preliminarily reviewed the case at hand and finds that Clemons is applicable here. The RO has separately denied, and the claim has been certified to the Board as a claim for service connection for depression. In light of Clemons, the Board has framed the issue as entitlement to service connection for a psychiatric disorder to encompass all psychiatric disorders, as reflected on the title page. The Board also notes that at the September 2020 hearing, the undersigned had stated that an extension of convalescence for the right knee disability was before the Board. However, a review of the file documents that following the May 2016 Statement of the Case, which denied an extension of convalescence of the right knee, the Veteran failed to submit a VA Form 9, Appeal to the Board, or a substantive appeal to perfect the appeal of this claim to the Board. Thus, this issue is not properly before the Board and is not addressed herein. Effective Date 1. 2. Entitlement to an effective date prior to December 24, 2002 for the grant of service connection for degenerative arthritis of the right knee with meniscal tear and degenerative arthritis of the right knee with limitation of extension Except as otherwise provided, the effective date of an award of compensation based on an original claim or a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim and a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In Rudd v. Nicholson, 20 Vet. App. 296, the Court held that once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date for the award of benefits. When such a freestanding claim is raised, the Court has held that such an appeal should be dismissed. Id. at 299300. In this case, the Veteran, through his representative, asserts CUE in the final October 2011 rating decision, which he states improperly assigned an effective date of December 24, 2002 for the grant of service connection for the right knee disabilities, as there was a pending claim for service connection for a right knee disability dating back to the 1990s at the time the Veteran requested that his claim for service connection for a right knee disability be reopened in December 2002. Clear and unmistakable error (CUE) is "a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). For CUE to exist, either (1) the correct facts, as they were known at the time, were not before the adjudicator or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. Id. Review of a request for revision on the basis of CUE is based on the record and law that existed at the time of the decision in question. Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc). VA's failure to comply with the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002) ("[A] breach of the duty to assist cannot constitute CUE."). Likewise, an allegation that the adjudicator improperly weighted or evaluated evidence cannot constitute CUE. Damrel, 6 Vet. App. at 246. The Veteran argues that the October 2011 rating decision improperly found that the Veteran had no pending claims before VA at the time the Veteran submitted the application to reopen the claim for service connection for a right knee disability, which was received on December 24, 2002. Specifically, the Veteran, through his representative asserts the following: The Veteran's June 1995 claim for a right knee disorder was still pending at the time of the October 2011 rating decision, granting this claim. As such, the effective date for the subsequent grant of service connection should reflect that proper date of claim. . . . Following, the September 1980 rating decision, denying the right knee claim for lack of diagnosis, the Veteran filed a claim to reopen in June 1995, attaching private medical records showing treatment for his bilateral knees. In November 1995, additional private medical records were submitted to the VA showing a confirmed diagnosis of the Veteran's right knee. [The Veteran] then submitted to a VA examination, wherein this diagnosis was confirmed. In a February 1996 rating decision, the Veteran's right knee claim was deferred. It appears that he was scheduled for yet another VA examination in May 1996. The record shows that the Veteran did not report to that examination. Thus, in August 1996, a rating decision was issued where the right knee was denied. Within a year of the August 1996 rating decision, the VA took up this issue again and issued a February 1997 rating decision. The rating decision narrative is not of record. However, within the available February 1997 rating decision code sheet, the Veteran's right knee claim was deferred pending another VA examination. This decision instructed the claims technician to schedule an "at once examination." Based on this argument, the Veteran's representative asserts that the right knee claim was pending as of February 1997 and up through the time when the Veteran filed his December 2002 claim. The Board finds that a claim for service connection for a right knee disability was not pending as of February 1997, and thus, there was no clear and unmistakable error made as to the effective date assigned at the time of the October 2011 rating decision, as the correct facts, as they were known at the time, were before the adjudicator. The Board acknowledges the Codesheet, dated "2-11-97," mentioned by the Veteran's representative. However, a complete review of the file shows that this Codesheet that is dated February 11, 1997 is actually an accidentally mis-dated page three to the February 1996 rating decision and not a new rating decision issued within one year of the August 1996 rating decision. The claims file, as it has been scanned into the Veterans Benefit Management System (VBMS), includes a two-page February 1996 rating decision that defers the Veteran's claim for service connection for a right knee disability, which rating is acknowledged by the Veteran's representative. A separate one-page document in VBMS, dated February 11, 1997, which is documented to have been received on February 11, 1997, documents that the claim for secondary service connection for the right knee should be scheduled for an "at once examination." The Veteran's representative asserts that this incomplete Codesheet is meant to be a separate rating decision issued by VA within one year of the August 1996 denial of service connection for the right knee, despite the fact that the file does not contain a rating decision narrative, dated February 11, 1997. Following the September 2020 hearing, where the Veteran's representative alleged these facts, the undersigned performed a very careful review of the documents to understand the facts surrounding the February 1997 Codesheet. The Board finds that this separate, one-page document, dated February 11, 1997, that the Veteran's representative asserts signifies a separate rating decision in February 1997, is not a separate rating decision, but rather, it is a mis-dated page three of the February 1996 rating decision. The Board finds this to be the case for several reasons. First, a close analysis of the two-page February 1996 rating decision reveals that while the first page includes the correct date of February 11, 1996, the second page was mistyped, and shows a date of February 11, 1997. Specifically, at the top of the second page, it shows, "Page 2 of Rating Dated: 2-11-97." Thus, it stands to reason that the third page included this same typographical error, as the top of the one-page Codesheet shows, "PAGE 3" with "DATE OF RATING: 2-11-97." (Upper case in original.) Second, the notations on the one-page document that the Veteran's representative asserts is a separate, February 11, 1997 Codesheet associated with a missing February 1997 rating decision narrative, are consistent with the RO's findings on pages 1 and 2 of the February 11, 1996 rating decision. For example, on page 1, the February 1996 rating notes that claims for service connection for back and right knee conditions are "deferred." (Italics added.) On page 2, the February 1996 rating decision (wrongfully dated February 11, 1997) documents the following: "Cited medical evidence fails to establish specific relationship between the [V]eteran's back, right knee and service[-]connected left knee conditions. An at[-]once examination will be schedule[d] to ascertain the relationship between these conditions and entitlement to service connection is deferred pending the results of that exam." (Italics added.) This is consistent with the notations on the one-page Codesheet, dated February 11, 1997, which documents that the claims for secondary service connection for back and right knee conditions are "deferred" pending an "at[-]once examination" and directs the case technician to schedule an orthopedic examination for the right knee and back conditions to determine whether they are related to the Veteran's service-connected left knee disability. (Italics added.) Thus, pages 1, 2, and 3 are all consistent with each other in addressing the claims for service connection for back and right knee disabilities by documenting that the claims were deferred, and pages 2 and 3 are consistent with each other in both having the incorrect year listed at the top of the page and documenting that an "at[-]once examination" would be scheduled for these two service-connection claims. This is why the Board believes that the "Page 3" Codesheet is the Codesheet for the February 11, 1996, rating decision. Consistent with this finding is that it would not make sense for VA to (1) defer a claim for service connection that has already been denied in August 1996; (2) schedule the Veteran for an examination after he failed to report for the May 1996 examination without documentation from the Veteran expressing a willingness to report for an examination or providing good cause for the failure to report to the May 1996 examination; and (3) issue a new rating decision after issuing a decision in August 1996 denying the claim, where no notice of disagreement or submission from the Veteran was received. Further, rating decisions include a Codesheet, and there is no Codesheet associated with the February 11, 1996 rating decision. This is another reason why the Board is confident that the Codesheet, dated February 11, 1997, is the Codesheet for the February 11, 1996 rating decision. While it is unfortunate that this document, prior to being scanned into VBMS, was separated from the rest of the rating decision and then documented to have been associated with the file on a separate date, for the aforementioned reasons, the Board finds that the February 1997 Codesheet referenced by the Veteran's representative as a new rating decision that deferred the claim for service connection for a right knee disability and that the Veteran, through his representative, asserts was still pending at the time of the October 2011 rating decision, was not a new rating decision deferring the right knee claim, but rather, was the third page of the February 1996 rating decision that was misfiled and contained a typographical error. Following the February 1996 rating decision, the Veteran was scheduled for a VA examination in May 1996. The Veteran did not attend this examination, and an August 1996 rating decision denied the claim for service connection for a right knee disability, and the Veteran was notified of this determination that same month. These facts are not contested by the Veteran or his representative. The Veteran did not file a Notice of Disagreement to the August 1996 rating decision, and thus, the Board finds the August 1996 rating decision is final. As neither the Veteran nor his representative have asserted that there was any other error committed by VA in the August 1996 decision denying the claim for entitlement to service connection for a right knee disability, the Board finds that there was no clear and unmistakable error in the October 2011 rating decision that assigned the effective date of December 24, 2002, for the award of service connection for right knee disabilities. At the time of the October 2011 rating decision, the RO assigned the effective date of December 24, 2002 based on an implicit finding that the August 1996 rating decision was final, and the Veteran filed an application to reopen the claim for service connection for a right knee disability on December 24, 2002. The effective date of the award of service connection based on an application to reopen a previously denied claim is the date VA receives the application to reopen. Thus the correct facts, as they were known at the time, were before VA, and the statutory and regulatory provisions extant at the time of the October 2011 were correctly applied, and the RO properly assigned an effective date of December 24, 2002 for the award of service connection for the right knee disabilities. Accordingly, an earlier effective date for the award of service connection for right knee disabilities is not warranted. Additionally, the Board notes that the Veteran did not file a Notice of Disagreement to the October 2011 rating decision that initially assigned a December 24, 2002 effective date for the grant of service connection, and thus, an earlier effective date is not available absent CUE. New and Material Evidence 2. Whether new and material evidence has been received to reopen a claim for service connection for a psychiatric disorder Prior unappealed decisions of the RO are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 11720 (2010). The claim for service connection for a psychiatric disorder was previously considered and denied by the RO in a September 1982 rating decision. The Veteran was notified of that decision and of his appellate rights. He did not file a Notice of Disagreement, formal or informal, to that decision. In February 2017, the Veteran submitted an application to reopen the claim for service connection for a psychiatric disorder. In the September 1982 rating decision, the RO denied service connection for a psychiatric disorder based on a finding that the record did not support that the Veteran had a psychiatric disorder, an onset of a disease or injury in service, or a nexus between the two. Since the September 1982 rating decision, the Veteran was diagnosed with an adjustment disorder and chronic pain, and VA treatment records document that the Veteran has anxiety and depression associated with his pain. The Board finds this evidence is new and material as it relates to one of the reasons for the September 1982 denial of service connection for a psychiatric disorder and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND 4. Entitlement to service connection for a left hand disability, to include as secondary to the bilateral knee disability. 5. Entitlement to service connection for a psychiatric disorder, to include as secondary to a bilateral knee disability. 6. Entitlement to a rating in excess of 10 percent for degenerative osteoarthritis of the right knee with meniscal tear under Diagnostic Code 5257. 7. Entitlement to a compensable rating for degenerative osteoarthritis of the right knee with limitation of extension under Diagnostic Code 5261. 8. Entitlement to a rating in excess of 20 percent for the left knee disability under Diagnostic Code 5258. 9. Entitlement to compensable rating for the left knee disability under Diagnostic Code 5261. 10. Entitlement to a compensable rating for the left knee scar. 11. Entitlement to a rating in excess of 10 percent for the left foot disability. 12. Entitlement to a TDIU rating. Initially, the record documents that the Veteran continues to receive treatment at VA for many of the remanded disabilities, including his bilateral knee disability. Furthermore, these records document that an additional surgery to one of his knees is pending. Thus, the Board finds that updated VA treatment records should be added to his claims file prior to completing the remainder of the development included in this remand. The Board also notes that while some of the Social Security Administration (SSA) records have been included in the claims file, the record does not include the medical records used by SSA to make its determination. As the entirety of the SSA records have not been associated with the claims file, and the claim for SSA disability benefits involved many of the disabilities being remanded herein, the Board finds a remand is necessary to attempt to obtain the entirety of the SSA records, including the medical records. As to the claims for service connection for a left hand disability and a psychiatric disorder, the Board finds a remand is necessary to provide the Veteran with VA examinations. The Veteran has not been provided a VA examination for either disability. The Veteran asserts that his left hand disability was caused or aggravated by the cane he was using to ambulate due to his service-connected bilateral knee disability. The Veteran asserts that his diagnosed adjustment disorder and chronic pain is caused or aggravated by pain from his service-connected bilateral knee disability. Thus, the Board finds VA examinations are necessary, as the Veteran has current disabilities that he asserts are caused or aggravated by his service-connected bilateral knee disability, and there is evidence in the file that establishes that these disabilities may be related to service-connected disabilities. As to the claims for higher ratings for the bilateral knee disability, the Board notes that at his hearing and in the statement from the Veteran's representative submitted in August 2020, the Veteran asserted that both his left and right knee disabilities had gotten worse since his most recent July 2018 VA examination. Thus, in addition to obtaining updated treatment records and SSA records, a new VA examination is necessary to assess the current nature of these disabilities. The Board finds the claim for a compensable rating for left knee scar must also be remanded for an additional VA examination. Since the July 2018 VA examination, which noted that the scar was not painful or unstable, the Veteran has asserted in his Notice of Disagreement that his scar is tender to the touch, and on the Form 9, the Veteran asserted that his scar has gotten wider and has blood or a bruise visible underneath the lower portion of the scar. As the Veteran has alleged worsening of the scar and/or the record suggests that the July 2018 examiner may not have properly assessed the reported symptomatology of the scar, the Board finds a remand is necessary to obtain clinical findings related to the scar to assist in determining whether a compensable rating is warranted. As to the claim for a rating in excess of 10 percent for the left foot disability, a new VA examination is necessary to assess the current nature of the disability. The Veteran has asserted that his left foot disability has gotten worse since his most recent VA examination, which was conducted in July 2018. Additionally, the Board notes that the July 2018 VA examiner diagnosed with the Veteran with degenerative arthritis and tenosynovitis only. A review of the record documents that the Veteran has a diagnosis of hallux valgus and plantar fasciitis, which were not addressed by the July 2018 examiner, and thus, it is unclear whether these separate disabilities are separate and distinct from the service-connected left foot disability, and, if so, which symptomatology is associated with the service-connected left foot disability and which symptomatology is associated with a nonservice-connected left foot disability. Furthermore, the record documents that the Veteran testified to, and medical records support, that he has reported numbness and other nerve-related symptomatology in his left foot. In the statement submitted by the Veteran's representative in November 2020, the representative also asserted that the Veteran's symptoms may also be better explained by a muscle injury in the left foot. See VBMS entry entitled, "Third Party Correspondence," received 11/09/2020, p. 7. The July 2018 examiner did not document symptomatology related to numbness or nerve or muscle-related symptomatology in the left foot. For the aforementioned reasons, the Board finds a VA examination is necessary to fully assess the diagnoses and symptomatology of the left foot. The matters are REMANDED for the following action: 1. Obtain the VA treatment records for the period from October 2020 to the present. 2. Obtain the federal records from the Social Security Administration, including the medical records used by SSA in deciding the Veteran's claim. Document all requests for information as well as all responses in the claims file. 3. After attempting to obtain the aforementioned records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed left hand disability. The below facts should be provided to the examiner to assist the examiner in providing informed opinions. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran is service connected for right and left knee disabilities. The Veteran contends that he uses a cane in his left hand due to these service-connected disabilities and that he has developed a left hand disability as a result of using the cane. A November 2017 VA treatment record shows that the Veteran was seen with left hand pain. The examiner noted the Veteran had a history of bilateral degenerative knees and was ambulatory with a cane and his unloading braces. The examiner documented the Veteran had been unable to use a cane due to the symptoms that had increased in his hand when he is utilizing a cane. The examiner noted the Veteran was using the cane in the right side and had thumb and palm pain. He then placed the cane in his left side, and the right side symptomatology resolved. He started having left thumb and palmar pain at the thenar eminence primarily, he stopped using his cane all together, and they symptoms resolved and then returned in the left side primarily. See VBMS entry with document type, "CAPRI," receipt date 05/28/2020, p. 401. A November 2018 VA treatment record shows the examiner documented the Veteran had been having left hand pains and had been using a brace. The examiner wrote, "Patient has a throbbing [pain] and is a 9/10. Provocation is unknown. He has been trying not to use his left hand. He has been doing [physical therapy] exercises but has not been helping. He has had this hand pain[] since 2016 after using his cane. He has had the pains on the thenar area. He has not been using his cane but still has issues with the left hand. He has notice[d] that it is getting worse. He states that the throbbing can happen at any time." See VBMS entry with document type, "CAPRI," receipt date 05/28/2020, p. 259. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Following a review of the Veteran's claims file, the examiner is asked to opine: (a) Is the left hand disability at least as likely as not (50 percent probability or greater) caused by the service-connected bilateral knee disability? The examiner is asked to specifically address the contention that the Veteran developed left hand pain after using a cane to ambulate due to his bilateral knee disability. Please state upon what facts and medical principles the opinion is based. (b) If the answer to (a) is negative, is it at least as likely as not (50 percent probability or greater) that the left hand disability is aggravated by the service-connected bilateral knee disability? Aggravation is different from causation in that it did not cause the disability but that it caused an increase in severity that is not due to the natural progress of the disability. The examiner is again asked to specifically address the contention that the Veteran developed left hand pain after using a cane to ambulate due to his bilateral knee disability. Please state upon what facts and medical principles the opinion is based. (c) If the examiner finds that the bilateral knee disability aggravates the left hand disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left hand disability prior to aggravation. If the examiner is unable to establish a baseline for the left hand disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 4. After attempting to obtain the aforementioned records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed psychiatric disorder, including an adjustment disorder. The below facts should be provided to the examiner to assist the examiner in providing informed opinions. To assist in a review of the claims file, the examiner is informed of the following facts: The Veteran is service connected for left and right knee disabilities, stomach condition with rectal bleeding, and a left foot disability. The Veteran contends that he has developed a psychiatric disorder due to pain from his service-connected disabilities, which is primarily associated with the right and left knees. Following a review of the Veteran's claims file, the examiner is asked to opine: (a) Is the diagnosed psychiatric disorder at least as likely as not (50 percent probability or greater) caused by the service-connected disabilities, specifically that his chronic pain from his bilateral knee disability? Please state upon what facts and medical principles the opinion is based. (b) If the answers to (a) is negative, is it at least as likely as not (50 percent probability or greater) that the psychiatric disorder is aggravated by the service-connected disabilities, specifically his chronic pain from his bilateral knee disability? Aggravation is different from causation in that it did not cause the disability but that it caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts and medical principles the opinion is based. (c) If the examiner finds that any or all of the service-connected disabilities aggravate the psychiatric disorder, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the psychiatric disorder prior to aggravation. If the examiner is unable to establish a baseline for the psychiatric disorder prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weightbearing and without weightbearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee scar. This examination may be performed by the same examiner who examines the Veteran's knees. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The below facts should be provided to the examiner to assist the examiner in providing informed opinions. The examiner is informed of the following facts with citations in the record, when applicable: A May 2016 VA treatment record shows the Veteran reported some numbness in the scar related to the left knee surgery. See VBMS entry with document type, "CAPRI," receipt date on 06/19/2018, with "#1" in the subject field, p. 3. The July 2018 VA examiner documented the left knee scar was not painful or unstable. See VBMS entry with document type, "C&P Exam," receipt date 08/23/2018, with "DBQ MUSC Knee" in the subject field, p. 11. In an October 2018 statement, the Veteran reported that his scar is tender. See VBMS entry with document type, "Notice of Disagreement," receipt date 10/24/2018, p. 2. A June 2019 VA treatment record shows the examiner documented the left knee scar was well healed. See VBMS entry with document type, "CAPRI," receipt date 05/28/2020, p. 102. In a December 2019 statement, the Veteran alleges that the scar has gotten wider and has blood or a bruise underneath the lower portion of the scar. See VBMS entry with document type, "VA 9 Appeal to Board of Appeals," receipt date 12/20/2019, p. 1. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left foot disability. The examiner should provide a full description of the disability, including noting each diagnosis in the left foot and whether each diagnosis is at least as likely as not related to the service-connected left foot disability. The examiner should also report all signs and symptoms necessary for evaluating the disability under the rating criteria, including muscle and nerve-related symptoms. If a separate muscle or nerve examination is necessary to fully assess these symptoms, such examination should be conducted. For all symptomatology documented in the left foot, including nerve and muscle-related symptomatology, the examiner should note which diagnosis of the left foot is causing the symptoms. The examiner's attention is also drawn to the fact that the record includes documentation that the Veteran also has a diagnosis of tendonitis in the left ankle, which is not service connected. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Keninger, 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.