Citation Nr: 21004437 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-41 287 DATE: January 27, 2021 REMANDED Entitlement to service connection for a right knee disability to include a meniscal tear is remanded. Entitlement to an initial rating in excess of 10 percent for right knee post traumatic arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1986 to April 1989. This matter was previously remanded by the Board of Veterans’ Appeals (Board) in January 2019 for further development. 1. Entitlement to service connection for a right knee disability to include a meniscal tear is remanded. 2. Entitlement to an initial rating in excess of 10 percent for right knee post traumatic arthritis is remanded. In compliance with the July 2019 Board remand, the Veteran was scheduled for a VA examination to assess the current severity of his service-connected right knee disability and whether there is an additional disability of the right knee. In December 2019, it was noted that the Veteran’s VA examination was cancelled. In May 2020, it was noted in the file that the Veteran did not respond to a November 2019 RSVP letter. There is also no indication why the Veteran missed the examination, or otherwise providing good cause as the Veteran’s failure to report for the examination. The agency of original jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC) in July 2020. The SSOC denied entitlement to a disability rating in excess of 10 percent for the Veteran’s right knee post-traumatic arthritis and denied service connection for an additional right knee disability, to include a meniscal tear, citing that the Veteran failed to attend his scheduled a VA examination and did not provide good cause for failing to attend the examination. The SSOC made its determination based on the available evidence of record. After a review of the record, however, it is not clear that the Veteran was properly notified of attempts to schedule a VA examination. Furthermore, it is also not clear whether the Veteran knew that that when a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b). As such, the Board finds that this case should be remanded to afford the Veteran the opportunity to participate in a VA examination to determine the nature and severity of his right knee disability and whether there is an additional right knee disability that warrants service connection. The Veteran is advised that VA’s duty to assist in developing facts and evidence in conjunction with a claim is not a one-way street; failure to cooperate in such development – such as reporting for an examination – may result a denial of his claim. 38 C.F.R. § 3.655; see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran’s service-connected right knee arthritis, AND, the nature and etiology of any additional right knee disability, to include a right knee meniscal tear. With regard to the current severity, 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 – to include range of motion on both weight-bearing and non-weight-bearing and in active and passive motion. To the extent possible, the examiner should identify any symptoms and functional impairment due to flare ups of the condition due to traumatic arthritis alone and discuss the effect of the Veteran’s right knee arthritis on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding symptoms or functional impairment during flare ups 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). With regard to whether there is additional disability of the right knee, the examiner should review the claims folder, and then respond to the following questions: a. Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has a current right knee disability separate from his service-connected arthritis, to include a right knee meniscal tear, that is related to his active service, in particular his in-service right ACL tear? b. Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right knee condition, to include a right knee meniscal tear, was caused by his service-connected right knee arthritis disability? c. Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s current right knee condition, to include a right knee meniscal tear, was aggravated by the service-connected right knee arthritis disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.