Citation Nr: 1328996 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 07-33 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating greater than 20 percent for postoperative residuals of a left knee injury with degenerative joint disease and chondrocalcinosis. 2. Entitlement to service connection for right knee disorder secondary to postoperative residuals of a left knee injury with degenerative joint disease and chondrocalcinosis. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1963 to December 1965. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a July 2011 decision, the Board affirmed the RO's decision to reduce the evaluation for a left knee disorder from 20 to 10 percent, effective from July 1, 2007. The Board also denied entitlement to higher ratings at any point pertinent to the Veteran's June 2006 increased evaluation claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in November 2012, the Court granted the Secretary of VA's Motion for Remand, vacating the Board's July 2011 decision regarding the Veteran's left knee claim to restore the prior rating, and remanding the appeal to the Board for further proceedings consistent with the Joint Motion. In May 2013, the Board restored the prior 20 percent rating, and remanded the issues of entitlement to a rating greater than 20 percent for postoperative residuals of a left knee injury with degenerative joint disease and chondrocalcinosis, and entitlement to service connection for a right knee disorder for further development. The issue of entitlement to service connection for a right knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's left knee disability is not manifested by either extension limited to 15 degrees or more, flexion limited to 45 degrees or less, dislocated semilunar cartilage with episodes of locking, pain, and effusion, or by ankylosis, or, other than the period of November 16, 2005 through November 8, 2006, by instability. 2. For the period of November 16, 2005 through November 8, 2006, the Veteran's left knee disability was not manifested by more than slight instability of the knee. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for postoperative residuals of a left knee injury with degenerative joint disease and chondrocalcinosis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5259 (2012). 2. For the period of November 16, 2005 through November 8, 2006 only, the criteria for a rating greater than 10 percent for instability of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. Prior to the decision appealed, VA notified the Veteran in July 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and notice of how disability ratings and effective dates are assigned. The Board finds the letter fully time- and content-compliant. 38 C.F.R. § 3.159(b). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. 38 C.F.R. § 3.159(c). VA provided the Veteran with a left knee examination in June 2013, in compliance with the Board's May 2013 remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded a meaningful opportunity to participate in the adjudication of the claims. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Id. Increased Ratings Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (noting that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The May 2013 rating decision reflects a 20 percent rating under Diagnostic Code 5010-5259. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2012). In this case, Diagnostic Code 5010-5259 reflects consideration of the effects of traumatic arthritis (Diagnostic Code 5010), and the removal of symptomatic semilunar cartilage (Diagnostic Code 5259). As the Board discussed in the May 2013 decision restoring the Veteran's 20 percent rating, this rating actually reflects a 10 percent rating for both painful motion related to arthritis, and a 10 percent rating related to the residuals of the Veteran's in-service knee surgery. Traumatic arthritis is rated under Diagnostic Code 5003 as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the joint involved. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. With any form of arthritis, painful motion is an important factor. It is the intention of the rating schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. A compensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5003 and 38 C.F.R. § 4.59 based on painful motion, is in order where arthritis is established by x-ray findings and no actual limitation of motion of the affected joint is demonstrated. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Where a compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is not applicable. The second currently-applied Diagnostic Code, 5259, provides for a 10 percent rating for the removal of semilunar cartilage from the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5259. No higher ratings are available under this Diagnostic Code. The left knee disability may also potentially be rated under Diagnostic Codes, 5257, 5258, 5260 or 5261. Under Diagnostic Code 5257, where there is slight recurrent subluxation or lateral instability, a 10 percent rating may be assigned. A 20 percent evaluation will be assigned for moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258 provides that a 20 percent rating will be assigned when there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. A 20 percent rating is the highest disability rating provided by this code. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Diagnostic Code 5260 pertains to limitation of flexion of the knee. This code provides that flexion limited to 30 degrees warrants a 20 percent evaluation and flexion limited to 45 degrees warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 pertains to limitation of extension of the knee. This code provides that extension limited to 15 degrees warrants a 20 percent evaluation, and, extension limited to 10 degrees warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261. With both Diagnostic Codes 5260 and 5261, there are higher potentially-applicable ratings for disabilities resulting in additional decreased of motion. VA General Counsel, has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both arthritis and instability, provided, of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997). In VAOGCPREC 9-2004 (September 17, 2004) VA General Counsel held that despite motion being in one plane the two motions, flexion (a retrograde motion) in bending the leg and extension (a forward motion) in straightening the leg, serve different functional roles, although both are necessary for normal function, such that they constitute two symptomatologies or manifestations that are not duplicative or overlapping such that separate ratings may be assigned for limitation of knee flexion (Diagnostic Code 5260) and for limitation of knee extension (Diagnostic Code 5261) without violating the rule against pyramiding, at 38 C.F.R. § 4.14, regardless of whether the limited motions are from the same or different causes. 69 Fed. Reg. 59,990 (2004). Evidence A treatment note from August 2005 indicated that the Veteran complained of constant left knee pain. An x-ray report from November 2005 documents degenerative joint disease of the left knee. Treatment reports from November 2005 document a long-standing history of left knee pain, and that the Veteran was considering a total knee replacement. He complained of instability and pain, with multiple episodes of giving way, but no symptoms of weakness, numbness, or tingling in the left lower extremity. He worked as a glass technician. Physical examination showed some crepitus, with pain along the medial and lateral joint lines. Range of motion was from 3 degrees extension to 100 degrees of flexion. The examiner noted midflexion instability to valgus stress, and a positive anterior drawer test result. The impression was left knee degenerative joint disease. The Veteran was scheduled for surgery in December 2005, but cancelled the surgery prior to undergoing the procedure. VA examined the Veteran in July 2006. The examination report notes that the Veteran's primary complaint at the time of the examination was pain. He indicated using over-the-counter medications for relief of his symptoms. The report also notes that the Veteran had refused surgery. The Veteran reported that he could stand for three to eight hours with only short rest periods and walk one to three miles; he also stated that he suffered from instability, but denied episodes of dislocation or subluxation. Physical examination revealed a pain free range of motion from 0 to 140 degrees. There was no additional limitation of motion or joint function due to symptoms of pain, fatigue, weakness, or lack of endurance following repetitive use or during flare-ups. There was no deformity of the joint. There was no left knee ankylosis, x-rays showed minimal degenerative joint disease, but chondrocalcinosis could not be excluded. The examiner did not indicate that he performed any tests to determine whether the Veteran had instability of the left knee. A November 2006 report from the Veteran's private orthopedist, Dr. Packman, notes that the last time the Veteran was seen at his practice was in 2001 for a left elbow problem, and that his current complaints involve increasing difficulty with his left knee. The report indicates that the Veteran still worked as a glass grinder. The appellant stated that the severity of his left knee pain was 10/10. Dr. Packman's physical examination revealed the Veteran's left knee surgical scar to be well healed. The left knee exhibited a full range of motion. There was a somewhat hypertrophic medial edge to the medial tibial plateau, but Dr. Packman did not detect any collateral or cruciate ligament instability. There was no effusion into the joint. Patellar apprehension sign was not present, and there was no knee crepitus. A full weight bearing x-ray was read as having shown major, but not end-stage, narrowing of the medial joint space, and there was a horizontal linear calcification in the lateral joint line that indicated a calcified lateral meniscus. Dr. Packman diagnosed medial compartment arthritis and chondrocalcinosis, which correlated with the type surgery the Veteran underwent in service, and that the arthritis could be expected to progress. The chondrocalcinosis was yet to be evaluated. Finally, Dr. Packman stated that it was not likely that the Veteran's left knee was improving, and that it could be expected to deteriorate over time. A December 2006 VA outpatient entry notes that the Veteran reported that he was unhappy with the current level of pain control pertaining to his left knee disability. The certified nurse practitioner noted that the Veteran's left knee movement was guarded throughout the physical examination, but that there was no crepitus, effusion, or instability. The Veteran was reexamined by VA in March 2007. The examination report notes that the Veteran reported pain of 10/10 severity when he stood for eight hours or more, and that his walking was then one-half mile to a mile. The Veteran also reported that he used a cane occasionally but not on a daily basis. Physical examination of the left knee revealed no tenderness on palpation of the surgical scar. Range of motion was 0 to 140 degrees and without pain, and repetitive use testing did not change those values. The examiner stated that the Veteran continued to work. In response to specific questions from the RO, the examiner noted that there was no evidence of instability of the left knee, and that any left knee degenerative joint disease had not increased since 2003. X-rays performed in March 2007 showed joint space narrowing at the medial compartment of the left knee, which was interpreted as "compatible with [degenerative joint disease] at the medial compartment. There was "highly suspicious evidence of calcifications at the lateral meniscus of the left knee," and evidence of infarct into the medullary cavity of the left femur. The x-rays, per the interpreter, did not reveal any significant change as compared to the previous study of 2003. During treatment in February 2008, the Veteran described "terrible" left knee pain, exacerbated by prolonged standing, for which he required a thermal heating pad and a knee brace to alleviate. At a March 2008 VA joints examination, the Veteran described a "constant, achy" left knee pain, and stated that he used a cane to ambulate. He could walk "about 100 feet at a stretch." He was having difficulty "standing and holding down his job," but stated that he could still do so. He denied a history of instability of the knee. Physical examination demonstrated swelling of the left knee. Range of motion was from 10 degrees extension to 90 degrees of flexion, with identical findings on repetitive motion, and pain throughout the range of motion. There was no instability of the knee or laxity of the joint. The Veteran underwent another VA examination in March 2011. At that time, the Veteran complained of increasing left knee pain, which was sharp and aching, and bothered him constantly. Symptoms reportedly were worse with any prolonged standing or walking. He could stand for two to three hours at a time, and could walk for one block. His pain was somewhat relieved when wearing a knee brace. He informed the examiner that he was still employed. He reported symptoms of left knee weakness, stiffness, locking, and swelling. Flare-ups occurred approximately once per month. He attended the examination with a knee brace and the use of a cane. Physical examination revealed some mild swelling. The Veteran walked with an antalgic gait, he flexed the knee to 90 degrees, but only extended the knee to 10 degrees, including on repetitive motion. He complained of knee pain throughout the examination. The examiner surmised that there would be additional lost motion on additional repetitive use, but was unable to provide a level of lost range of motion without resort to speculation. There was no ligamentous laxity, and McMurray's test was negative. The Veteran again saw Dr. Packman in February 2011. At that time, he had full range of motion in both knees, with tenderness at the medial joint line of the left knee and a palpably prominent medial tibial plateau. There was no effusion in the left knee. The examiner noted "some varus in the left knee." In June 2013, VA provided the Veteran with an additional left knee examination. The Veteran reported "occasional" pain in the left knee since service. His pain symptoms increased with prolonged walking and standing. On physical examination, the Veteran demonstrated a range of left knee motion from 0 to 90 degrees, with pain beginning at 80 degrees, without any changes in the range of motion following repetitive use testing. The left knee demonstrated mild swelling and tenderness, without effusion. There was no joint instability, subluxation, or dislocation. The Veteran reported that he stopped working in 2011, but did not indicate that his retirement was due to his left knee disorder. He reported that he could only walk four to five blocks, with a cane, and that he could not stand for more than 15 minutes. Analysis The Veteran's left knee disability does not warrant a rating higher than the 10 percent currently assigned on the basis of limitation of motion. Considering the diagnostic code presently applied to the disability, Diagnostic Code 5010, a higher rating is not warranted as there is no evidence of incapacitating episodes due to arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. For other possible ratings due to limitation of motion, the Board notes that at times his extension was limited to 10 degrees. Such a finding would warrant a compensable, 10 percent rating under Diagnostic Code 5261. Despite that fact, the Veteran is not entitled to separate ratings under Diagnostic Codes 5010 and 5261, as the ratings would both be based on limitation of motion; a compensable rating under Diagnostic Code 5010 is only warranted where the Veteran does not meet the criteria for a compensable rating under a Diagnostic Code that addresses limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010; VAOGCPREC 9-2004. Thus, whether he is rated under Diagnostic Code 5010 or 5261, he is entitled to no more than a single 10 percent rating. At no point does the Veteran demonstrate a limitation of flexion to 45 degrees, which would be necessary for a separate compensable rating under Diagnostic Code 5260. The Board finds that the evidence does not support a compensable rating based on limitation of flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5260; DeLuca, 8 Vet. App. at 204-07. In this regard, the Board observes that only one examiner has made note of where pain on flexion began, that being in the June 2013 examination report. That examiner determined that pain began at 80 degrees of flexion. Neither of the examiners who reported on the Veteran's complaints of pain in the range of motion (March 2008 and March 2011) made objective findings concerning where the pain on range of motion began, but only repeated the appellant's assertions. Further, the examiners did not indicate that the Veteran's range of motion was limited to less than the 90 degrees noted at those examinations as a result of the claimed pain symptoms. Notably, the 90 degree measurement was maintained on repetitive motion at both the March 2008 and March 2011 examinations. Previous examiners noted pain-free range of motion testing. The Veteran's disability has not resulted in dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The Board finds, however, that a separate 10 percent rating based on instability of the left knee, for the period of November 16, 2005 through November 8, 2006, is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Beginning in November 2005, the Veteran complained of instability of the left knee, and a physical examination at that time confirmed midflexion instability. Although the Veteran subsequently underwent a VA examination in March 2006 and complained of instability at that time, the examiner made no findings concerning instability. Significantly, at a private treatment examination on November 9, 2006, his examiner determined that there was no knee instability. At no time did any medical provider identify evidence that would suggest that the Veteran's instability was moderate or severe. The Board is aware of no law preventing the application of separate ratings for instability of the knee in addition to ratings for painful motion due to arthritis under Diagnostic Code 5010, and the removal of symptomatic semilunar cartilage under Diagnostic Code 5259. As such, for the period of November 16, 2005, to November 8, 2006 (the date prior to the November 9, 2006 report from the Veteran's private physician that indicated there was no longer instability of the knee), where the evidence of record demonstrates left knee instability, a separate 10 percent rating is applicable under 38 C.F.R. § 4.71a, Diagnostic Code 5257. See Hart, 21 Vet. App. at 509-10. The Board has also considered whether the Veteran's left knee disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. There is no suggestion that the Veteran has required periods of hospitalization or has incurred significant interference with his employment due to his left knee disorder. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. The Court has held that the issue of entitlement to a total disability rating for compensation purposes based on individual unemployability is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a total rating is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a total disability evaluation based on individual unemployability due to service connected disorders is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the evidence reflects that the Veteran stopped working in 2011. He has not asserted that his service-connected left knee disorder made him unemployable, and there is no evidence to suggest as much. Even considering the physical limitations placed on the Veteran by his service-connected left knee, as discussed in the various examination reports, the evidence does not indicate that he retired due to his left knee disorder, or that he was prevented from securing and following gainful employment due to that disability. At his March 2008 examination, the Veteran indicated that work was difficult due to his knee disability, but he was able to perform his job duties, and he was still employed at the time of his March 2011 examination. As there is no evidence of unemployability, the question of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is not raised under Rice. ORDER Entitlement to a rating greater than 20 percent for postoperative residuals of a left knee injury with degenerative joint disease and chondrocalcinosis is denied. Entitlement to a separate 10 percent rating for instability of the left knee, for the period of November 16, 2005 through November 8, 2006 only, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND In March 2008, VA provided the Veteran with an examination to determine whether he had a disability of the right knee, and if so, whether that disability was secondary to the service-connected left knee disability. At that time, the examiner opined that he found "no pathology of the right knee," and thus that the Veteran did not have a right knee disability secondary to his left knee disability. Despite that examiner's findings, X-rays completed in March 2007 demonstrated joint space narrowing at the medial compartment of both knees, findings which were "compatible with [degenerative joint disease] of both knees." See March 2007 bilateral knee x-ray report. As the examiner failed to note the Veteran's right knee diagnosis, the ensuing opinion is not probative of the matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). Per the June 2013 VA examination of the left knee, the Veteran reported, consistent with his other statements regarding his right knee, that since injuring the left knee in 1965, he had "gradually . . . developed pain and swelling in the right knee because he was putting more weight on the right knee to avoid the pain in the left knee." Where there is an indication that a diagnosed disability may be associated with another service-connected disability, but there is insufficient competent medical evidence of record to make a decision on the claim, VA must provide the Veteran with an examination. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board also notes that the Veteran claims to have undergone arthroscopic surgery on the right knee two years prior to the June 2013 examination. VA must attempt to obtain any relevant records. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide the names, contact information, and any necessary authorization to permit VA to secure all pertinent private and VA records from providers who have treated him for a right knee disorder. The RO/AMC must make at minimum two attempts to obtain any private records. All attempts to procure any outstanding treatment records should be documented in the claims file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After all relevant records have been obtained, schedule the Veteran for an orthopedic examination to determine the nature and etiology of his right knee disability. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must provide a complete examination of the Veteran's right knee, and determine the nature of any current right knee disability. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that any current right knee disability began during service, is otherwise etiologically related to service, or is caused or aggravated by the service-connected left knee disability. If the examiner determines that the right knee disability is not caused by, but is aggravated by, the service-connected left knee disability, the examiner must attempt to identify (a) the baseline manifestations of the right knee disability found present prior to aggravation; and (b) the increased manifestations which, in the examiner's opinion, are proximately due to the left knee disability. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented his or her consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs