Citation Nr: 25006294 Decision Date: 05/09/25 Archive Date: 05/09/25 DOCKET NO. 18-41 872 DATE: May 9, 2025 REMANDED Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), rated as 50 percent disabling before January 8, 2024, and as 70 percent disabling since then, is remanded. Entitlement to an increased evaluation for a right knee disability, currently rated as 10 percent disabling, is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disorders (TDIU) between October 23, 2014, and January 8, 2024, is remanded. Entitlement to special monthly compensation (SMC) at the rate authorized by 38 U.S.C. § 1114(s) between October 23, 2014, and January 8, 2024, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2002 to June 2005. This case initially comes to the Board from a September 2013 decision of the Agency of Original Jurisdiction (AOJ). In September 2020, the Veteran testified before the undersigned at a virtual hearing. A transcript of that hearing is of record. In August 2023, the Board issued a decision and remand, which denied a TDIU rating for the period before October 23, 2014. Because the Veteran had been awarded a combined 100 percent disability rating for the period since October 23, 2014, the Board dismissed the TDIU claim for that period as moot. Finding that new examinations were necessary to decide the PTSD and right knee claims, the Board remanded those issues to the AOJ for further development. The Veteran appealed the August 2023 decision to the United States Court of Appeals for Veterans Claims (Court). In March 2024, the parties filed a Joint Motion for Partial Remand (JMR). According to the motion, the parties agreed that the Board erred in dismissing as moot the issue of TDIU for the period since October 23, 2014. Although the Veteran had been awarded a combined 100 percent rating, the motion explained, the Veteran could potentially become eligible for special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) if, in addition to disabilities rated at a combined 60 percent or more, he has a single service-connected disability rated as total. See Bradley v. Peake, 22 Vet. App. 280, 290-291 (2008). According to the JMR, because the development of the remanded increased rating claims could potentially result in a separate 100 percent rating for a single disability, the Board should have explained, "whether the claim of TDIU for the period since October 23, 2014, should have been remanded with the claim of PTSD as it relates to entitlement to SMC benefits." According to the JMR, the Veteran, "does not challenge the Board's denial of entitlement to a TDIU rating before October 23, 2014. Thus, the parties respectfully request that the Court dismiss the appeal regarding this issue." By granting the March 2024 JMR, the Court dismissed the appeal of the denial of TDIU before October 23, 2014, vacated the Board's dismissal of the claim for a TDIU for the period since October 23, 2014, and remanded that sole issue back to the Board. In July 2024, the Board determined that the remaining TDIU claim was intertwined with the increased rating claims concerning PTSD and the right knee, which were then the focus of continuing development before the AOJ. The Board remanded the TDIU issue so it could be considered together with the associated increased rating claims. In March 2025, the AOJ granted TDIU based on a single service-connected disability (PTSD with traumatic brain injury (TBI)), effective January 8, 2024. Consistent with that ruling and with the same effective date, the AOJ granted SMC at the rate authorized by 38 U.S.C. § 1114(s). Although this ruling is favorable, the AOJ granted the requested benefit for only part of the review period in this appeal. Accordingly, the claim for a TDIU rating and for SMC for the period between October 23, 2014, and January 8, 2024, remains part of this appeal. While the TDIU/SMC claims and the increased rating claims for PTSD and for the right knee were separated by the August 2023 decision and remand, they have once again been merged under the same docket number. Although the need for more delay is regrettable, the Board must remand this case for further development. Since the last recent remand of the Veteran's psychiatric claim (August 2023), the AOJ obtained treatment records from the Veteran's local VA Medical Center (VAMC), which include mental health medication management notes, prepared by a nurse practitioner in February 2024, March 2024, and June 2024. According to these notes, the Veteran told the nurse practitioner who prescribes his mental health medications that, "he has been seeing a therapist in the community who had encouraged him to [participate in] another medication trial." Unfortunately, the claims file does not include copies of any of the records of the Veteran's treatment with the therapist mentioned in the VAMC medication management notes. Nor is there any information in the claims file indicating that the AOJ attempted to obtain them. The Secretary must make reasonable efforts to obtain potentially relevant private treatment records. 38 U.S.C. § 5103A(b)(1). On remand, the AOJ should request copies of the missing records. Pursuant to the August 2023 remand instructions, the AOJ arranged a right knee examination in April 2024. The examiner prepared a report which includes the results of range of motion testing. Unfortunately, it does not include separate sets of range of motion test results, in degrees of flexion and extension, after the right knee was tested in passive and active motion and in weight-bearing and in nonweight-bearing. The report does indicate that the requested testing took place. Unfortunately, the examiner provided conflicting information about the results. According to the April 2024 report, the right knee exhibited pain with both active motion and in passive motion. It did not exhibit pain in either weight-bearing or in nonweight-bearing. But the terms "weight-bearing" and "non-weightbearing" and, likewise, the terms "active" and "passive" are, respectively, mutually exclusive. The first set of testing methods (active or passive) can clearly be combined with one of the latter (weight-bearing or nonweight-bearing). For example, one can test range of motion when the knee is in both active motion and in weight-bearing. During the initial tests, the measurements recorded by the examiner, apparently to indicate range of motion, in degrees, during active motion, must necessarily have been either when the right knee was in weight-bearing or in nonweight-bearing because a middle position is impossible - i.e., one cannot measure active range of motion when the joint is neither weight-bearing nor nonweight-bearing. Thus, there is a contradiction in the information the examiner provided about the test results. If, as the report suggests, the Veteran experienced pain during active motion, it follows that he must also have experienced pain in either weight-bearing or in nonweight-bearing or possibly both. Unfortunately, the report indicates that he experienced no pain when the right knee was tested in weight-bearing or in nonweight-bearing. For these reasons, the right knee report is inadequate. To enforce compliance with its prior remand orders, the Board must remand the right knee claim for a new examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of a TDIU rating and SMC between October 23, 2014, and January 8, 2024, are inextricably intertwined with the remanded increased rating claims for PTSD and for the right knee disability. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). Thus, the Board will remand the claims for a TDIU and for SMC for the period between October 23, 2014, and January 8, 2024, pending the resolution of the intertwined issues. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization from the Veteran, make reasonable efforts to obtain records of the Veteran's treatment with the therapist in private practice who is mentioned in VAMC mental health medication management notes dated February 2024, March 2024, and June 2024, and who, according to the notes, encouraged the Veteran to participate in a medication trial. The AOJ should invite the Veteran to authorize the release of any other medical records which he believes may be relevant to this appeal. The AOJ should continue its efforts to obtain all identified records unless it is reasonably clear that the requested records do not exist or that further attempts to obtain them would be futile. If the AOJ does not obtain the missing records from the therapist mentioned in the VAMC mental health medication management notes or any other outstanding records identified by the Veteran, it must write to the Veteran and explain why it has determined that the records do not exist or that further attempts to obtain them would be futile. 2. Make reasonable efforts to obtain and upload all progress notes and other records concerning the Veteran's treatment from private medical providers pursuant to the Veterans Choice and/or Community Care Programs. The AOJ is advised that entries in the Veteran's VAMC records indicate that copies of treatment records from these providers were received and were available to VA personnel through the VistA Imaging and other computerized record storage programs. If for any reason the AOJ cannot obtain copies of all records of the treatment the Veteran received from non-VA providers using VistA Imaging or by searching other information storage systems available to VA staff, the AOJ should invite the Veteran to authorize the release of these and any other medical records which he believes may be relevant to this appeal. If the Veteran authorizes the release of any records in response to this request, the AOJ should request copies of all previously unavailable, identified records from their respective records custodians. The AOJ should continue its efforts to obtain all identified records unless it is reasonably clear that the requested records do not exist or that further attempts to obtain them would be futile. 3. Schedule a VA examination to ascertain the current severity of the Veteran's service-connected right knee disability. The electronic claims file must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disabilities should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's knees in a written report which complies with 38 C.F.R. § 4.59 BY RECORDING SEPARATE SETS OF RANGE OF MOTION TEST RESULTS during both active and passive motion AND SEPARATE RESULTS, IN DEGREES, WHEN THE KNEES ARE TESTED IN WEIGHT BEARING AND NONWEIGHT-BEARING. For each test (active, passive, weight bearing, and nonweight bearing), when recording range of motion test results, the examiner must identify the point, in degrees, where motion ends AND ALSO IDENTIFY THE POINT, IN DEGREES, WHEN THE VETERAN BEGINS TO EXPERIENCE PAIN. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING EACH TEST. If any of these findings are not possible, please provide an explanation. To comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017) the examiner should indicate whether pain, weakness, fatigue and/or incoordination significantly limits functional ability of the right knee during flares and/or after repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or if repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide an estimate of the extent of motion loss described in terms of degrees. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. 4. The AOJ must ensure that the requested examination report complies with these instructions. If any report or opinion is insufficient, the AOJ should return it to the relevant examiner for corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.