Citation Nr: 18149405 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 11-04 677 DATE: November 9, 2018 REMANDED Entitlement to an initial rating in excess of 30 percent for left total knee replacement with residual scar from July 1, 2012 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1985 to July 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran's claims file is currently under the jurisdiction of the Oakland, California, RO. The December 2009 rating decision granted service connection for degenerative joint disease of the left knee with patellar tendinitis, status post left knee arthroscopy with residual scar, and assigned a 10 percent initial rating effective from August 1, 2009. An October 2012 rating decision characterized the service-connected left knee disability as left total knee replacement, and assigned a 100 percent evaluation, effective from May 9, 2011, the date of knee replacement surgery, through June 30, 2012, the last day of the month following one-year from implantation of the prosthesis. The 100 percent rating commenced subsequent to an initial one month temporary total convalescence rating assigned pursuant to 38 C.F.R. § 4.30. A 30 percent rating was assigned effective from July 1, 2012. A February 2016 Board decision denied entitlement to an initial rating in excess of 10 percent prior to May 9, 2011, and denied entitlement to a staged rating in excess of 30 percent for total left knee replacement from July 1, 20l2. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a November 2016 Joint Motion for Partial Remand (JMPR), vacated the February 2016 Board decision concerning entitlement to a disability rating in excess of 30 percent from July 1, 2012 for total left knee replacement, and remanded the issue to the Board for readjudication. The Board decision concerning entitlement to a higher initial rating prior to May 9, 2011 remained undisturbed. Therefore, the only issue before the Board is entitlement to a staged initial rating in excess of 30 percent for left total knee replacement with residual scar from July 1, 2012. This matter was previously remanded by the Board in March 2017 and October 2017 where it was remanded for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. Entitlement to an initial rating in excess of 30 percent for left total knee replacement with residual scar from July 1, 2012 is remanded. As noted above, pursuant to the October 2017 Board decision, this matter was remanded to procure a new VA examination and corresponding opinion. Specifically, the new examination was requested for the purpose of curing deficiencies present in the most recent April 2017 VA examination which did not adequately address the issue of functional impairment in light of the tenets of Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Compensation and Pension Examination inquiry form indicates that a new Knee and Lower Leg VA examination was requested on November 8, 2017 and was later cancelled by Medical Administrative Services (MAS). See December 2017 VA 21-2507a Request correspondence. The Inquiry form only indicates that the examination request was “cancelled,” without an exact date of cancellation or reason for the termination by MAS. On review, the claims file does not include any letter notifying the Veteran of the date and time of the scheduled examination, or any record of the reason for the cancellation by MAS. The July 2018 supplemental statement of the case (SSOC) indicates that the RO was “informed as of November 27, 2017 that you failed to respond to an attempted scheduling of a VA examination.” The record does not reflect how the RO was “informed” about the alleged missed appointment as the evidence identified in the SSOC only lists VA treatment records. The Board is mindful of the provisions of 38 C.F.R. § 3.655 regarding action to be taken when a veteran fails to report for a scheduled VA examination, "when entitlement to a benefit cannot be established" without the scheduled examination. 38 C.F.R. § 3.655 (a),(b). However, in this case, it is unclear whether the Veteran was properly notified of the examination, and there is no published guidance establishing the presumption of regularity in such a situation. Kyhn v. Shinkseki, 716 F. 3d 572 (Fed. Cir. 2013). Thus, the Board finds that the Veteran should be afforded another opportunity to appear for a VA examination in relation to his claim. The matter is REMANDED for the following actions: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for his left knee disability since October 2017. After securing any necessary releases, the RO should request any records identified which are not duplicates of those contained in the claims file, to include all available VA treatment records from October 2017 to present. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 2. Schedule the Veteran for a VA examination concerning the current nature and severity of his service-connected left knee replacement. The claims file must be made available for review and the examiner must note that a review was completed. All indicated tests and studies must be completed. The examiner should address functional impairment, if any, during flare-ups or when the left knee is used repeatedly. The range of motion lost during a period of flare-up or over-use should be indicated in degrees. If the examination occurs when a flare-up is not being experienced, or at a time without repeated use over a period of time, the examiner should ascertain adequate information, such as frequency, duration, characteristics, severity, or functional loss regarding the Veteran's flares by alternative means and estimate the Veteran's functional loss due to flares or repeated use based on all the evidence of record. If the Veteran no longer experienced flare-ups of the knee, this should be made clear. The examiner should then review the record and elicit any information deemed necessary from the Veteran to ascertain the functional impact, if any, the Veteran's prior history of flare-ups (as reported at the June 2015 VA examination), had at the time. If this is not feasible to determine the above-requested information without resort to speculation, the examiner must provide an explanation for why this is so. It must be clear that the inability to provide an opinion is predicated on lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. See id. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought remains denied issue a Supplemental Statement of the Case to the Veteran and his representative. After allowing an appropriate amount of time for response, return the case to the Board for review. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. COLICELLI