Citation Nr: 25004716 Decision Date: 04/07/25 Archive Date: 04/07/25 DOCKET NO. 17-04 243 DATE: April 7, 2025 REMANDED Entitlement to a disability rating in excess of 10 percent for a right knee disability, to include limitation of flexion, limitation of extension, and a meniscus condition, is remanded. Entitlement to a separate compensable disability rating for instability of the right knee prior to October 23, 2023, and a disability rating in excess of 20 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The appellant served honorably in the United States Army on active duty and active duty for training, to include from June 1981 to August 1981 and from January 1987 to September 1992. The appellant received many decorations, medals, badges, citations, and campaign ribbons including (but not limited to) the (1) Army Service Ribbon, the (2) Army Lapel Button, the (3) Sharpshooter Badge (M-16), the (4) Army Good Conduct Medal, the (5) Army Achievement Medal, and the (6) National Defense Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs' (VA) Veterans Benefits Administration (the agency of original jurisdiction (AOJ)). The appellant submitted a notice of disagreement (NOD) with the rating decision in November 2015, and the AOJ issued a statement of the case in November 2016. The appellant perfected his appeal with a substantive appeal form including a request for a hearing in January 2017. The appellant testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2022. Several Board remand orders in July 2023, June 2024, and December 2024 instruct the AOJ to conduct additional evidentiary development, to include obtaining outstanding relevant records and VA examinations of the appellant's claims. The remand orders stress the need to rate the severity of the appellant's right knee disability under both the rating criteria prior to and after changes effective February 7, 2021. They emphasize the need for the VA clinician to provide rationale in support of rating the severity of knee instability as slight, moderate, or severe under the rating criteria in effect prior to February 7, 2021, considering evidence that the appellant experienced falls dating back to at least 2015. See, e.g., Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018). They emphasize the need to identify dates of any medical improvement or worsening with citation to supporting evidence for those dates. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). They highlight the need to clarify the extent to which variability in the findings in the record are the result of medical improvement, worsening conditions, flare-ups, or the ameliorating effects of medications. See, e.g., Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). The AOJ effectuated increases in the appellant's disability compensation while his appeal was pending and following Board remand orders. For example, in a November 2023 rating decision, the AOJ granted a separate compensable disability rating of 20 percent for instability of the right knee effective October 23, 2023 (the date of a VA examination of the knees), and it also granted service connection for a right shoulder disability with an evaluation of 20 percent effective September 30, 2008. A July 2023 rating decision effectuated a grant of service connection for posttraumatic stress disorder (PTSD) with an evaluation of 50 percent effective December 29, 2010, and an evaluation of 100 percent effective March 3, 2015. These increases in the disability ratings were the result of additional evidentiary development pursuant to Board remand orders, which helped substantiate the appellant's claims. However, the grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). While the AOJ obtained additional medical records and VA examinations pursuant to the remand directives, the record still contains significant deficiencies that must be corrected to ensure that the AOJ fulfills its duty to assist the appellant with the development of his claims and substantially complies with the Board remand directives. See 38 U.S.C. § 5103A; Stegall v. West, 11 Vet. App. 268, 271 (1998). Additional VA treatment records have been associated with the claims file, and they indicate that there are additional outstanding relevant private treatment records. See, e.g., Community Care Consult Result Note, September 9, 2024 (indicating that outstanding relevant private treatment records were uploaded to a VA electronic medical records database). The evidentiary record lacks documentation demonstrating that the AOJ made reasonable efforts to obtain these records and associate them with the claims file prior to adjudicating the claims. The United States Court of Appeals for the Federal Circuit has stressed that relevant records in VA's constructive possession (e.g., in VA electronic medical record databases) must be associated with the claims file prior to adjudicating the claims. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). See also Powell v. McDonough, No. 22-5375, 2023 U.S. App. Vet. Claims LEXIS 2013 (Vet. App. Dec. 29, 2023) (a memorandum decision highlighting the need to obtain records in VA electronic medical record databases and associate them with the claims file). On remand, the AOJ should work with the appellant and his representative to obtain all outstanding relevant records and associate them with the claims file. If the AOJ determines that further efforts to obtain these records would be futile, it should document that finding. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(e). Additionally, the VA examinations that the AOJ obtained have significant deficiencies, which the AOJ should have addressed by obtaining addendum opinions prior to readjudication. In pertinent part, the medical opinions indicate that severity of the appellant's disabilities would be worse without the ameliorating effects of medications, but they do not specify the degree of functional impairment that the appellant would experience without medications, to include during flare-ups. See Medical Opinion Disability Benefits Questionnaire, December 20, 2024. They also indicate that the appellant's knee instability was worse than previously assessed, but they do not specify the dates of any medical improvement or worsening with citation to supporting evidence, to include the treatment records that mention the appellant's history of falls dating back to at least 2015. See Medical Opinion Disability Benefits Questionnaire, December 20, 2024. After associating the outstanding relevant records with the claims file, the AOJ should obtain additional medical opinions to address the additional evidence to address these concerns. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate); Stegall v. West, 11 Vet. App. 268, 271 (1998). These matters are REMANDED for the following actions: 1. The AOJ should contact the appellant and all current representatives and request their assistance in identifying any outstanding relevant records, to include outstanding relevant private treatment records referenced in the appellant's VA treatment records. See, e.g., Community Care Consult Result Note, September 9, 2024. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the appellant's claims file. The United States Court of Appeals for the Federal Circuit has stressed that relevant records in VA's constructive possession (e.g., in VA electronic medical record databases) must be associated with the claims file prior to adjudicating the claims. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). See also Powell v. McDonough, No. 22-5375, 2023 U.S. App. Vet. Claims LEXIS 2013 (Vet. App. Dec. 29, 2023) (a memorandum decision highlighting the need to obtain records in VA electronic medical record databases and associate them with the claims file). If the AOJ determines that further efforts to obtain these records would be futile, it should document that finding. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(e). 2. After associating the outstanding relevant records with the appellant's claims file, the AOJ should obtain an additional medical opinion on the severity of the appellant's right knee disability during the period on appeal under both the rating criteria prior to and after the changes to the applicable rating criteria effective February 7, 2021. See 38 C.F.R. § 4.71a. The AOJ should provide the VA clinician with a complete copy of the claims file, to include this remand order. The AOJ should ensure that the VA clinician addresses the following concerns: (a.) The VA clinician should identify all disabilities of the right knee that the appellant has experienced during the period on appeal based on a review of the claims file even if the appellant is asymptomatic at the time of the VA clinician's review. For the purpose of the VA clinician's review, a disability includes functional impairments of earning capacity (e.g. as due to pain) even in the absence of a diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (2018). (b.) The VA clinician should rate the severity of each knee disability, to include during flare-ups, under applicable rating criteria, to include the rating criteria in effect prior to February 7, 2021, and the revised rating criteria effective February 7, 2021. The VA clinician should consider pertinent evidence, to include the appellant's lay statements about his symptoms. See Miller v. Wilkie, 32 Vet. App. 249 (2020); Dalton v. Nicholson, 21?Vet. App.?23, 39-40 (2007). (c.) When assessing knee instability using the rating criteria in effect prior to February 7, 2021, the VA clinician should provide rationale for rating the severity as slight, moderate, or severe with citation to supporting evidence. For example, if the VA clinician finds that the severity is moderate, the VA clinician should provide an explanation of why it is not mild or severe. As noted in prior remand orders, the VA clinician must address the appellant's testimony at the December 2022 Board hearing regarding his falls, as well as the numerous treatment records which note a history of falls, including VA treatment notes dated: December 15, 2015, March 2, 2017, February 7, 2018, April 17, 2019, February 13, 2020, March 31, 2021, and May 13, 2022. (d.) To the extent that the medications are not contemplated by the rating criteria, the adjudicator must assess the effects of the medications and determine the severity of the symptoms in the absence of medications. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). The pertinent rating criteria in this case does not contemplate medications. See 38 C.F.R. § 4.71a. Therefore, the VA clinician should clarify the extent to which the appellant's medications for his disabilities improved his ability to function. In other words, the VA clinician's assessments of functional impairment should be based on the degree of impairment in the absence of medications. (e.) To the extent that the VA clinician finds that the severity of the appellant's disabilities has improved or worsened during the period on appeal, the VA clinician should specify the dates of worsening and improvement with citation to supporting evidence for those dates. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). (f.) If the VA clinician is unable to provide an opinion on these matters, the VA clinician must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the clinician. 3. Thereafter, the AOJ should readjudicate the claims, to include the intertwined claim of entitlement to TDIU. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy, Counsel The 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.