Citation Nr: 22012865 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 16-17 494 DATE: March 7, 2022 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to a rating in excess of 10 percent for a left hip disability is remanded. Entitlement to a rating in excess of 10 percent for a right hip disability is remanded. Entitlement to service connection for left knee instability is remanded. Entitlement to service connection for right knee instability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from May 1994 to March 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in August 2019; a transcript is of record. The Board subsequently remanded this matter for additional development additional development, to include most recently in January 2020. 1. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. 2. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. 3. Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. 4. Entitlement to a rating in excess of 10 percent for a left hip disability is remanded. 5. Entitlement to a rating in excess of 10 percent for a right hip disability is remanded. The Veteran asserts entitlement to increased ratings for bilateral knee, hip, and right ankle disabilities. These issues were previously before the Board in January 2020 when they were remanded to schedule the Veteran for examinations. Since the time of the Veteran's examinations, her medical records indicate that she requested additional range of motion testing in June 2020 and states that the C&P examiner did not complete such. Although the March 2020 examinations reported range of motion testing for her ankle, knees, and hips, the Board views the Veteran's request as a belief that her testing did not accurately depict her range of motion. Additionally, her medical records indicate that she obtained a private MRI sometime in approximately 2019. The examiners did not review the Veteran's most recent MRI as indicated in the diagnostic testing portions of the March 2020 examinations showing the most recent diagnostic testing was from July 2011. There may also be outstanding private physical therapy records from Benchmark as her records show in March 2021 she would be referred for additional physical therapy. As such, a remand is necessary to obtain relevant outstanding private treatment records and additional examinations. 6. Entitlement to service connection for left knee instability is remanded. 7. Entitlement to service connection for right knee instability is remanded. The Veteran asserts entitlement to bilateral knee instability. Although the March 2020 examination did not report knee instability, the Veteran previously testified that her knee gives out and that she has fallen. In light of the above increased rating claims being remanded for updated treatment records, as well as new examinations, the Board finds it cannot issue a decision on the issue of entitlement to knee instability ratings because they are inextricably intertwined with the above remanded increased rating issues. See Harris v. Derwinksi, 1 Vet. App. 180, 183 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, these issues are deferred pending the receipt of additional evidence, as directed below. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow her an opportunity to provide the missing records. 2. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records related to treatment she has received for her orthopedic disabilities. In particular, the RO should attempt to obtain private treatment records from the Veteran's physical therapy (Benchmark), as well as any private MRIs from approximately 2019-2020. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow her an opportunity to provide the missing records. 3. After completing #1 and #2, schedule appropriate examinations to assess the current nature and severity of her service-connected bilateral knee, hip, and right ankle disabilities. Perform all necessary testing. If needed, to answer any part of the requests below, send the file to an appropriate examiner with sufficient experience and/or expertise in orthopedic matters and ask the clinician to review the claims file. Ensure all clinicians have access to the claims file, to include a copy of this Remand. If it is not possible to provide a specific measurement based on direct observation, the examiner is to provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran's statements. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. Address whether the Veteran has left and/or right knee instability that is at least as likely as not (an approximately 50 percent probability) related to her military service. If not, then addresses whether the Veteran's left and/or right knee instability is (1) proximately due to OR (2) aggravated by her service-connected bilateral knee strain. (Continued on the next page) Inform the examiner above that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.