Citation Nr: 18149862 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-47 556 DATE: November 13, 2018 REMANDED The claim of entitlement to a compensable initial disability rating for a right knee disability is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Navy from August 1980 to August 1984, with additional service in the Reserves. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board of Veterans’ Appeals (Board) notes that in September 2018, the Veteran’s attorney submitted a request for assistance under the Freedom of Information Act (FOIA). An October 2018 response acknowledged receipt of the request, which was being processed. To date, the request has not yet been fulfilled; however, as the claim is being remanded, there is no prejudice to the Veteran, as the Agency of Original Jurisdiction (AOJ) will have an opportunity to fulfill the request on remand. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). The record reflects that the Veteran was most recently afforded a VA examination to assess the severity of his service-connected right knee in March 2015. However, there are internal inconsistencies within the March 2015 VA examination report. While range of motion testing revealed flexion to 140 degrees and extension to zero degrees, which is full range of motion, the examiner noted that the Veteran right knee range of motion was abnormal or outside of normal range. The Veteran’s attorney has requested a new VA examination based on the internal inconsistencies in the March 2015 VA examination report as well as based on an assertion of worsening. See August 2016 VA Form 9 and March 2018 brief. Thus, due to the inconsistencies within the most recent VA examination report and the assertions of worsening, the Board finds that a contemporaneous examination is warranted to reconcile the prior inconsistencies and to ensure that the record reflects the current severity of the Veteran’s right knee disability. Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The Board notes that the most recent VA records associated with the claims file are dated October 2014. The matter is REMANDED for the following actions: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. The AOJ must provide the Veteran and his representative with a complete copy of the requested documents from his claims file in accordance with the procedures for complying with a FOIA request. 3. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician (different from the examiner who conducted the March 2015 examination) to determine the severity of his right knee disability. The examiner must test and record the range of motion for both knees in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which such pain begins. 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 right knee disability alone and discuss the effect of the Veteran’s right 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). A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel