Citation Nr: 18141994 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 15-08 802 DATE: October 12, 2018 REMANDED Entitlement to an increased rating in excess of 20 percent for left knee, status post dislocation and partial meniscectomy, is remanded. Entitlement to an effective date earlier than July 4, 2016, for the additional amount payable for the Veteran’s dependent spouse is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to January 1971, followed by service in the Army and Air National Guard. This matter comes to the Board of Veterans’ Appeals (Board) from an August 2013 rating decision which continued a 20 percent rating for the Veteran’s left knee disability, and a September 2016 RO determination which granted an additional amount payable for the Veteran’s dependent spouse, effective July 4, 2016. In June 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A copy of the transcript is of record.   1. Entitlement to an increased rating in excess of 20 percent for left knee, status post dislocation and partial meniscectomy, is remanded. Subsequent to the February 2015 statement of the case, the AOJ continued to obtain and associate with the Veteran’s claims file VA treatment records and a VA examination pertinent to his claim for an increased rating. The Veteran also submitted a Disability Benefits Questionnaire dated in July 2018. Although initial AOJ review is automatically waived for evidence submitted by the Veteran or his representative because his VA Form 9 is dated after February 2, 2013, the automatic waiver does not apply to VA-generated evidence, such as VA examination reports or VA treatment records not submitted by the Veteran. 38 U.S.C. § 7105(e) (2012). Further, waiver of a supplemental statement of the case (SSOC) is only applicable to evidence submitted by the Veteran or his agent. See 38 C.F.R. § 20.1304. As such, the claim must be remanded so that a SSOC addressing the additional VA-generated evidence may be issued. See 38 C.F.R. § 19.31, 19.37 (2017). While the record contains contemporaneous VA examinations in June 2012 and May 2017, and a private DBQ in July 2018, regarding the Veteran’s left knee disability, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examinations do not contain passive range of motion measurements and the May 2017 VA examination does not indicate at what degree pain begins during range of motion. Furthermore, while the Veteran reported flare-ups, the examiners did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Therefore, the Board finds that a remand is warranted so that an adequate VA examination can be obtained to assess the current severity of the Veteran’s left knee disability.   2. Entitlement to an effective date earlier than July 4, 2016, for the additional amount payable for the Veteran’s dependent spouse is remanded. At the Veteran’s June 2018 Travel Board hearing, the Veteran, through his representative, indicated that he wished to withdraw his claim for an earlier effective date for the additional amount payable for the Veteran’s dependent spouse. It is not clear from the record that the Veteran understood the full consequences of withdrawing his appeal, in light of the ruling in Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018), 2018 U.S. App. LEXIS 14959, adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). Therefore, the AOJ should contact the Veteran and solicit clarification as to whether he desires to withdraw his claim for an earlier effective date for the additional amount payable for the Veteran’s dependent spouse. The Veteran is advised that a withdrawal of the claim must be in writing. The matters are REMANDED for the following actions: 1. Contact the Veteran and solicit clarification as to whether he desires to withdraw his pending claim of entitlement to an earlier effective date for an earlier effective date for the additional amount payable for the Veteran’s dependent spouse. The Veteran should be advised that a withdrawal of the claims must be in writing. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should indicate at what degree pain begins during range of motion. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, 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. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC).   An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel