Citation Nr: 22016332 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 14-14 745 DATE: March 21, 2022 ORDER Entitlement to an initial compensable rating for allergic contact dermatitis due to grass, to include extraschedular consideration, is denied. Entitlement to a rating in excess of 20 percent for status post right ankle fracture is denied. REMANDED Entitlement to service connection for right knee, to include as due to a service-connected status post right ankle fracture, is remanded. Entitlement to a rating in excess of 30 percent for major depressive disorder is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's allergic contact dermatitis did not manifest as characteristic lesions involving at least 5 percent but less than 20 percent, of the entire body affected, or at least 5 percent, but less than 20 percent, of exposed areas affected, or required intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-months period. 2. Throughout the period on appeal, the status post right ankle fracture manifested by arthritis with marked limitation of motion of the ankle, swelling, and complaints of pain and discomfort without ankylosis, malunion of the os calcis or astragalus, or astragalectomy. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for allergic contact dermatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.31, 4.118, Diagnostic Code 7806. 2. The criteria for a rating in excess of 20 percent for status post right ankle fracture have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.45, 4.71, Diagnostic Code 5010-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from July 1981 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Some of the issues in the case was remanded in December 2017 and has since been returned to the Board for appellate review. Most recently, the Veteran testified at a hearing before a Veterans Law Judge in November 2020. A transcript of the proceeding has been associated with the claims file. A July 2021 letter informed the Veteran that the Veterans Law Judge who held the November 2020 hearing was no longer employed by the Board and that the Veteran had the right to request another optional Board hearing. In July 2021, the Board scheduled the Veteran for a January 2022 hearing. The Veteran's attorney submitted a new correspondence in July 2021 cancelling the request and asked the Board to decide the claims on their merits. Therefore, the Board deems the hearing request withdrawn. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). In every instance where the schedule does not provide a noncompensable rating for a diagnostic code, a noncompensable rating shall be assigned when the requirements for a compensable rating have not been met. 38 C.F.R. § 4.31. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. 1. Allergic Contact Dermatitis The Veteran is currently assigned a noncompensable rating pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7806, for his service connected allergic contact dermatitis. This appeal stems from a January 2012 claim. The Veteran contends that he should receive a compensable rating. In the alternative, the Veteran contends that his symptoms should be given extraschedular considerations. The schedular criteria for skin disabilities was amended in August 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended Diagnostic Codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). Claims pending prior to the effective date are to be considered under both old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied. Under the regulations in effect at the time the Veteran filed his claim, Diagnostic Code 7806 provided a zero percent rating where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted if at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). Under the new regulations, effective August 13, 2018, Diagnostic Code 7806 will be rated under a General Rating Formula for Skin, under which a zero percent rating will be assigned if the disability includes characteristic lesions involving less than 5 percent of the entire body affected, involving less than 5 percent of exposed areas affected, or no more than topical therapy required over the past 12-month period. A 10 percent rating will be assigned if the disability meets at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating will be assigned if the disability meets at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating will be assigned if the disability meets at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. As an alternative, the old Diagnostic Code 7806 allows for rating disability as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7820. The Veteran's allergic contact dermatitis due to grass is not known to cause any scarring or disfigurement. The Board finds these diagnostic codes do not contemplate the same symptomatology and disability picture for allergic contact dermatitis as closely as criteria set forth in Diagnostic Code 7806, or under the General Formula, which applies since August 2018. Notably, the disability is not manifested by scars, disfigurement, tissue loss, or gross distortion or asymmetry of features. As such, a higher rating under Diagnostic Code 7800 through 7805 would not be appropriate. The Veteran underwent a VA examination in September 2019 to determine the severity of his allergic contact dermatitis. The Veteran reported that that he breaks out in rashes all over his body with urticaria and facial rash, but a rash was not present during this examination. The Veteran was not found to be receiving any treatments. During the examination, the Veteran's appearance was normal. The skin disability was not found to have a functional impact on the Veteran's skin condition. During the November 2020 Board hearing, the Veteran reported that his face blows up, with big welts around his face and neck, making breathing difficult; however, the Veteran reported this occurs only when he is in contact with the grass. He reported to a last flare-up about a year ago, which lasted about 15-20 minutes and no longer than 30 minutes. After a thorough review of the record, the Board finds that a higher rating is not warranted for the Veteran's allergic contact dermatitis under either version of Diagnostic Code 7806. Under the former regulations, the evidence does not show that the Veteran's allergic contact dermatitis affected at least five percent of the entire body or at least five percent of the exposed areas affect or required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. In fact, during the September 2019 VA examination, the examiner noted that the Veteran's allergic contact dermatitis did not require any treatments. Therefore, the weight of the evidence is against the Veteran's claim of entitlement to a compensable rating for allergic contact dermatitis under the old regulations or the amended regulations in effect beginning August 13, 2018. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher rating. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned rating reflects. Moreover, the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, medical treatment records do not show that the Veteran's disability more nearly approximates the criteria in the next higher rating. Here, the observations prepared by skilled professionals are far more probative that the Veteran's own opinion. The Board has considered whether a staged rating or staged rating under Hart v. Mansfield, supra is appropriate; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board acknowledges that the Veteran has contended that he experiences additional functional impairments that are not contemplated in the rating criteria. Notably, during the November 2020 hearing, the Veteran contended in addition to the above skin issues, experiencing breathing problems when he is in close contact with grass, but that his breathing problems disappear once he is away from grass and that he requires no extra treatment to resolve his breathing problem. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the schedular ratings for that disability are inadequate when comparing the level of severity of the disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and an assigned rating is adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the Veteran's disability picture is not so unusual or exceptional in nature as to make the schedular rating inadequate. The disability has been rated under a diagnostic code that specifically contemplates lesions, which is precisely how the Veteran's disability primarily manifests. See 38 C.F.R. § 4.118, Diagnostic Code 7806. As the diagnostic code reasonably describes the Veteran's disability level and symptomatology, the schedular evaluation is adequate and referral of the Veteran's case for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. 111. In light of the above, the Board finds that the criteria for a compensable rating for allergic contact dermatitis is not warranted. There is no reasonable doubt to be resolved in this case and the appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Status Post Right Ankle Fracture The Veteran is currently assigned a 20 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271 for his status post right ankle fracture. This appeal stems from a January 2012 claim. The Veteran's status post right ankle fracture is currently assigned a 20 percent rating under Diagnostic Code 5010-5271. Hyphenated Diagnostic Codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). A 10 percent rating under Diagnostic Code 5271 requires "moderate" limitation of motion and a 20 percent rating requires "marked" limitation of motion. 38 C.F.R. § 4.71a. The rating schedule does not define the terms "moderate" or "marked," although the order of this terminology indicates that each term encompasses more serious symptomatology. Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. 38 C.F.R. § 4.6. Although an element of evidence to be considered by the Board, the use of terminology such as "moderate" by VA examiners and others is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under the revised version of Diagnostic Code 5271, effective February 7, 2021, a 10 percent rating is warranted for moderate limitation of motion, defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A maximum 20 percent rating is warranted for marked limitation of motion, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under both the former and revised Diagnostic Code 5271 a 20 percent rating is the highest possible schedular rating based upon limitation of motion. Higher ratings of 30 and 40 percent are possible under Diagnostic Code 5270 with evidence of ankylosis. Normal ranges of motion of the ankle are dorsiflexion from zero degrees to 20 degrees, and plantar flexion from zero degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5003, degenerative arthritis is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as: A 10 percent rating is awarded with X-ray evidence of involvement of two or more major joints or two or more minor joint groups; a 20 percent rating is awarded when the disorder manifests in occasional incapacitating episodes. In this case, there is evidence of limitation of motion, so the Veteran's bilateral ankle disabilities will be rated under Diagnostic Code 5271. Also included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate ankle disabilities based on other manifestations, including Diagnostic Code 5270 (ankylosis of the ankle), Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of the os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy). None of the above appear to apply to the Veteran's disabilities. Turning to the evidence, during the October 2011 VA examination, range of motion testing was performed and showed, at worst, 30 degrees on right ankle plantar flexion, with no objective evidence of painful motion. Right ankle dorsiflexion showed 5 degrees. The Veteran reported having flare-ups and attributed it to approximately nine times of leaving work due to ankle pain in the past year. There was no change to range of motion after repetitive use testing or any change to include additional limitation in range of motion or additional functional loss or impairment. There were no joint instability or ankylosis. He reported to using canes occasionally. During the March 2014 VA examination, range of motion testing was performed and showed, at worst, 25 degrees on right ankle plantar flexion to include after repetitive use, with no objective evidence of painful motion. Right ankle dorsiflexion showed 15 degrees to include after repetitive use. The Veteran reported having flare-ups during cold and wet days, which he treated with soaking in Epsom salts and 500mg of Naproxen. There was no additional limitation in the range of motion, but the Veteran did report to a functional loss of less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing and weight-bearing. There were no joint instability or ankylosis found on the examination. He reported to using braces and orthotics regularly. The Board notes that the reference to the Veteran's ankles in May 2019 is actually associated with an unrelated back claim. Nonetheless, the Veteran reported daily ankle pain during the examination. The Veteran's muscle strength was normal for the Veteran's bilateral ankles, with normal reflexes and sensation. In an addendum opinion issued in May 2020, the examiner also reported that the Veteran was not having a flare-up during the May 2019 examination. There are no treatment records in significant conflict with the examination findings. During the November 2020 Board to being limited to walking at maximum 15 to 20 feet at a time before needing to rest. He also testified that he has not received any new physical therapy or treatment. Based on the foregoing, the Board finds that the criteria for a higher rating for the Veteran's status post right ankle fracture have not been met. Plantar flexion was reduced, at worst, to 25 degrees and dorsiflexion reduced at most to 5 degrees during the appeal period. Furthermore, the Veteran is already in receipt of maximum rating under the current rating based upon limitation of motion. These findings represent that the severity of the Veteran's status post right ankle fracture warrants no more than the 20 percent rating currently assigned for marked limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. The Board acknowledges the Veteran's use of various assistive devices during the appeal, as well as his reports that he cannot walk more than 15 to 20 minutes at a time or 15 to 20 feet at a time. Ultimately, however, he is already in receipt of the maximum rating allowed under the criteria, and the range of motion he tested for does not show that he should be entitled to a higher or separate rating. The Board has also considered whether the Veteran is entitled to an increased or separate rating under any alternative diagnostic code for the ankle. However, the evidence fails to establish ankylosis of any kind, malunion of the os calcis or astragalus, or an astragalectomy. Therefore, higher or separate ratings under Diagnostic Codes 5270, 5272, 5273 and 5274 are not warranted. Further, as the Veteran is already service connected at 20 percent under Diagnostic Code 5271 and cannot also receive 20 percent rating under Diagnostic Code 5003 as that would result in impermissible pyramiding. See 38 C.F.R. §§ 4.14, 4.45, 4.71a. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned rating reflects. Moreover, the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, supra. However, medical treatment records do not show that the Veteran's disability more nearly approximates the criteria in the next higher rating. Here, the observations prepared by skilled professionals are far more probative that the Veteran's own opinion. The Board has considered whether a staged rating or staged rating under Hart v. Mansfield, supra is appropriate; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, supra. In light of the above, the Board finds that the criteria for a rating in excess of 20 percent for status post right ankle fracture is not warranted. There is no reasonable doubt to be resolved in this case and the appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Right Knee Disorder A remand is necessary to obtain a VA examination to determine the nature and etiology of the Veteran's claimed right knee disorder. In January 2019, the Veteran was provided X-ray of the knee, and the results showed some mild arthritic changes and calcification of the menisci. During the November 2020 Board hearing, the Veteran reported that his status post right ankle fracture seemed to have caused or aggravated his right knee disorder. Notably, he reported that shifting on his ankles due to his status post right ankle fracture has seemingly put strain on his right or left knee. Given the new possible diagnosis of a right knee disorder and the assertion of a new theory of entitlement, a new VA examination is necessary. 2. Major Depressive Disorder A remand is necessary to obtain a new VA examination for the Veteran's service-connected major depressive disorder. During the November 2020 Board hearing, the Veteran testified to a worsening of some of his major depressive disorder symptoms, although he also testified that he was currently not receiving treatments for his symptoms due to moving to a new state. Specifically, he reported to seeing worsening of sleeping troubles, worsening of hygienic maintenance, and possible signs of hallucinations or delusions. As the above evidence indicates a possible worsening of that the Veteran's major depressive disorder since his last VA examination, an additional examination should be afforded to determine the current level of severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 3. TDIU Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final disposition of the claim of entitlement to an increased rating for major depressive disorder and claim for service connection for a right knee disorder. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the claims file, including a copy of this remand, should be sent to an appropriate examiner for opinion as to the nature and etiology of the Veteran's claimed right knee disorder. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner must provide an opinion regarding the following questions: (A) For each diagnosed right knee disorder, is it at least as likely as not (50 percent probability or greater) that such disorder had its onset during service or is etiologically related to service? (B) For each diagnosed right knee disorder, is it at least as likely as not (50 percent probability or greater) that such disorder is caused or aggravated by his service-connected status post right ankle fracture? The examiner should specifically address the Veteran's contention that his status post right ankle fracture caused an altered gait which in turn resulted in his claimed right knee disorder. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, 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). 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected major depressive disorder. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected major depressive disorder. The examiner must reconcile any conflicting medical evidence of record. The examiner must be sure to address the Veteran's lay statements and contentions regarding his psychiatric symptoms and their impact on occupational and social functioning. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. (Continued on the next page) A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, 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). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. J. Kim, Associate 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.