Citation Nr: 18155669 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-05 369 DATE: December 4, 2018 REMANDED The claim of entitlement to an evaluation in excess of 10 percent for residuals of a left knee ligament injury is remanded. The claim of entitlement to an evaluation in excess of 10 percent for chondromalacia with osteoarthrosis of the left knee is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from March 1982 to May 1984. 1. The claim of entitlement to an evaluation in excess of 10 percent for residuals of left knee ligament injury is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to an evaluation in excess of 10 percent for residuals of a left knee ligament injury as the medical evidence of record is insufficient. At the outset, the March 2013 VA examination of record does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements, or measurement of range of motion of the right knee. Additionally, it has been over 5 years since the Veteran’s VA examination. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). The Veteran asserts that his left knee disability is worsening, and will require a surgical replacement of the knee. Finally, the examination fails to consider the Veteran’s reports of flare ups and additional functional limitation caused by his left knee disability. An estimation for additional functional impact caused during a flare up was not provided, and the examiner indicated that his knee presented no functional impairment despite the Veteran’s competent lay reports otherwise. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As such, a new examination is necessary to adequately assess the present severity of the Veteran’s left knee disability. 2. The claim of entitlement to an evaluation in excess of 10 percent for chondromalacia with osteoarthrosis of the left knee is remanded. See argument for Section 1. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to determine the nature and severity of his left knee disability. A complete copy of the claims file must be made available to the examiner. The examiner should take a thorough history of observable symptomatology from the Veteran. The examiner must consider the Veteran’s lay statements regarding observable symptomatology associated with his left knee disability. After a thorough review of the medical and lay evidence of record is complete, the examiner should discuss the following: (a.) Describe the current nature and severity of the Veteran’s left knee disability, including any and all diagnoses pertaining to his left knee. Indicate whether any new diagnosis is a progression of his service-connected disabilities. (b.) Assess both active and passive range of motion, as well as range of motion on weight-bearing and non-weight bearing. These ranges of motion must also be assessed for the Veteran’s right knee. If possible, estimate range of motion after repetitive use and during flare ups based upon observations in the examination and the Veteran’s lay reports of symptoms. (c.) 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). (d.) Discuss the functional limitation, if any, of the Veteran’s left knee disability with consideration of the Veteran’s lay statements regarding his experienced limitations due to symptomatology. (e.) If possible, provide a retrospective opinion regarding limitations due to repetitive use and flare ups since August 2011 based on the Veteran’s lay statements of experienced symptomatology. (f.) The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel