Citation Nr: 20009727 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 17-14 927 DATE: February 5, 2020 REMANDED Entitlement to an initial disability rating in excess of 10 percent for right knee strain with arthroscopic lateral meniscectomy and chondroplasty is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee strain is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2010 to July 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned in January 2020. During the hearing, the undersigned Veterans Law Judge found that the Veteran’s appeal met the criteria for VA’s “one-touch” initiative program. To provide a response to the Veteran’s appeal immediately after his hearing, the transcript of the hearing will be associated with the claims file at a later time. 1. Entitlement to an initial disability rating in excess of 10 percent for right knee strain with arthroscopic lateral meniscectomy and chondroplasty is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for left knee strain is remanded. At the January 2020 hearing, the Veteran reported that his right knee has given out continuously and he has undergone recent surgeries on his right and left knees, in June 2019 and January 2020 respectively. As such, the Board finds that the record indicates that the Veteran’s knee disabilities have worsened since his last VA examination in September 2017, over two years ago. Therefore, a more contemporaneous medical examination is warranted. Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the rating of the disability will be a fully informed one); Caffrey v. Brown, 6 Vet. App. 377 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). The matters are REMANDED for the following action: 1. Obtain pertinent and outstanding VA treatment records. 2. Then, schedule the Veteran for a VA examination to address the severity of his bilateral knee disabilities. Provide the claims file, including a copy of this REMAND, to the examiner for review. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion and findings of instability. Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his knee and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. A full and complete explanatory rationale must be provided for any opinion offered. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.