Citation Nr: 23038245 Decision Date: 07/11/23 Archive Date: 07/11/23 DOCKET NO. 16-47 552 DATE: July 11, 2023 REMANDED Entitlement to a disability rating greater than 10 percent for left knee disability is remanded. Entitlement to a disability rating greater than 20 percent for low back disability is remanded. REASONS FOR REMAND The Veteran had active-duty military service from July 1978 to October 1978, February 2004 to November 2006, and August 2010 to October 2011. He also had periods of National Guard service. These matters come before the Board on appeal of two rating decisions. First, a rating decision issued in issued in March 2017, granted service connection for a low back disability, and assigned a 20 percent disability rating effective October 2011. The second rating decision, issued in July 2017 granted an increased disability rating of 10 percent for the left knee disability, effective June 2017. The Board notes that a Board hearing was held in this matter in August 2019. Unfortunately, the recording mechanism failed during the hearing, and it was not possible to generate a hearing transcript. The Veteran was informed of the issue and offered the opportunity for a new hearing, which he declined in June 2020. Both the left knee and the low back disability claims have previously come before the Board, with the most recent remand in November 2021 for issuance of a Supplemental Statement of the Case (SSOC) regarding the left knee claim and a new VA examination regarding the low back claim. These matters were returned to the Board in September 2022, at which time the claims for increased ratings were denied. At that time, the Veteran filed an appeal to the Court of Appeals for Veterans Claims (Court) which, in April 2023, issued a Joint Motion for Remand (JMR) vacating the September 2022 Board decision and returning the matter for further specific development and adjudication. Included in the JMR instructions was a directive to consider whether the rating decision on appeal with respect to the low back claim truly began in June 2017 as stated in the Board decision of September 2022. The JMR stated that the March 2017 rating decision assigned the initial disability rating for low back and that a Notice of Disagreement (NOD) was filed in September 2017, within the one-year appeals period of the March 2017 rating decision. The JMR noted that the September 2017 NOD was equally valid as an appeal to the March 2017 rating decision and this issue should be addressed by the Board. The Board has reviewed the record and agrees with the assessment of the JMR that the March 2017 rating decision did not become final, thereby pushing the starting date of the appeals period back to October 2011. This determination is reflected in the discussion above. Entitlement to a disability rating greater than 10 percent for left knee The Board notes for the record that the procedural history of this claim includes a period of confusion regarding whether service-connection had been afforded to the left knee in error when the Veteran asserted it should have been his right knee. This matter was resolved in a rating decision issued in November 2017 which granted service connection for the right knee and assigned a separate 10 percent disability rating. While an appeal for an increased disability rating for the right knee was filed in June 2021, during the pendency of this appeal, the claim was granted in July 2021 and a 20 percent disability rating was assigned and that matter is final. The current appeal pertains only to the left knee disability. The April 2023 JMR found that the Board had failed to ensure proper compliance with the duty to assist because there were outstanding relevant treatment records which should have been considered. Specifically, the JMR noted that the March 2022 treatment record from the Veteran's primary care provider included a referral for X-ray and consultation with an orthopedist and instructions to return in six months. This is enough to indicate that there are additional VA records which were available at the time of the Board decision and should have been considered. In compliance with the directives of the JMR, the Board will remand this issue to the Agency of Original Jurisdiction (AOJ) to obtain all outstanding VA treatment records from March 2022 to the present. The AOJ should then review those records and, if indicated, arrange for an additional medical opinion to address the severity of the Veteran's left knee disability. Entitlement to a disability rating greater than 20 percent for low back disability The JMR found that the Board had not fully accounted for the functional limitation aspect of the Veteran's disability period related to his low back, as required by Caluza v. Shinseki, 24 Vet. App. 74 (2010). After a review of the evidence of record, the Board finds that additional information is required. The Veteran has indicated that he has pain and pain flare-ups brought on by prolonged sitting, standing, or walking, by lifting heavy objects, by climbing and by stooping or bending. (See VA Examination, 02/07/2014; C&P Exam, 10/20/2020.) He has also indicated that his work duties can result in increased pain. (See C&P Exam, 07/10/2017; C&P Exam, 10/20/2020.) Further, he has asserted that he has flare-ups, sometimes daily, and that he had to rest for up to two days to relieve his pain. (See Appellate Brief, 05/09/2023.) But there is no information as how frequently his flare-ups require two days of rest for recovery, whether he has lost time at work due to his back disability, and whether any of his non-work activities are impacted by his back disability and flare-ups. Also, because of the extended appeals period, information regarding these effects is needed for the entire time since the Veteran's separation from service. This information should be obtained on remand as part of a new VA examination and opinion. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2022 to the present and associate them with the electronic claims file. 2. If indicated by the record, either an addendum opinion or a new VA examination of the Veteran's left knee disability should be obtained. Any examination or opinion should address the factors specified in Correia v. McDonald, 28 Vet. App. 158 (2016) (range of motion measurements or estimates should include passive and active as well as weight-bearing/non-weight-bearing) and Sharp v. Shulkin, 29Vet. App.26, 31(2017) (consideration should be given to the impact of flare-ups and the amount of functional impairment demonstrated). 3. Afford the Veteran a new VA examination and opinion for his low back disability, to include obtaining a more detailed history from the Veteran regarding functional impairments. The examiner must assess range of motion, evidence of neurological symptoms related to the low back disability, and current symptoms. In addition, the examiner should address functional impairment based on how frequently his flare-ups require two days of rest for recovery, whether he has lost time at work due to his back disability, and whether any of his non-work activities are impacted by his back disability and flare-ups. The examiner should elicit information regarding how these symptoms and considerations have changed over the entire period since separation from service. The examiner should, to the extent possible, translate the described deficiencies into estimated range of motion findings for the specified periods of increased symptoms. The Court has held that the lack of opportunity to view a flare-up is insufficient basis for declining to provide an estimate. If flare-ups are not reported during the examination, the examiner should still estimate the functional effects of earlier-reported flare-ups. The examiner is asked to provide a rationale or statement of reasons for each opinion provided. The examiner is asked to cite specific records in the evidence and any medical treatises or research which informed the opinion. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Handy, Cheryl E. 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.