Citation Nr: 21071265 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-62 950 DATE: November 30, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease, prior to February 8, 2021, is remanded. Entitlement to a disability rating in excess of 30 percent for left knee degenerative joint disease with total knee replacement, from July 1, 2021, is remanded. REASONS FOR REMAND The Veteran had active military service from October 1969 to July 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the file. These matters were previously before the Board in March 2020 and March 2021. In March 2021, the Board remanded for outstanding treatment records and a new examination. Notably, the Veteran did not submit the requested VA Form 21-4142 seeking authorization to contact any private providers. See March 2021 VA Correspondence. While VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). 1. Entitlement to a rating in excess of 10 percent disabling for left knee degenerative joint disease prior to February 8, 2021 is remanded. 2. Entitlement to a rating in excess of 30 percent disabling for status post total left knee replacement, from July 1, 2021 is remanded. Although the Board regrets the additional delay, 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. § 5103; 38 C.F.R. § 3.159. Prior to the Veteran's February 8, 2021 total knee replacement, his left knee degenerative joint disease was rated at 10 percent disabling pursuant to Diagnostic Codes 5010-5257, effective April 18, 1995. He was rated at 100 percent from February 8, 2021 to June 30, 2021, pursuant to Diagnostic Code 5055 for total left knee replacement; and 30 percent after July 1, 2021, pursuant to Diagnostic Code 5055. As the Veteran was awarded a 100 percent rating for convalescence following left total knee replacement surgery, effective February 8, 2021 to June 30, 2021, the Board will not consider the severity of the Veteran's status post left knee replacement for that period because the 100 percent rating constitutes a complete grant for the time period. Pursuant to the March 2021 Board remand, the Veteran was afforded a VA Knee Examination in June 2021. During the examination, the examiner referenced a June 8, 2021 treatment record for the Veteran, indicating it was a follow up appointment for his left knee replacement. This record does not appear to be a part of the claims file. On remand, VA should attempt to obtain any available, outstanding private treatment records regarding treatment for his left knee disability. Additionally, the record does not contain any VA treatment records since April 2021. On remand, all outstanding VA records should also be obtained. The Board also notes that the June 2021 VA Knee examination fails to comply with Correia v. McDonald, 28 Vet. App. 158, 168 (2016) in which the United States Court of Appeals for Veterans Claims (Court) held that an adequate VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and with range-of-motion measurements of the opposite undamaged joint. Here, the examiner failed to provide range of motion assessments in weight-bearing and non-weight bearing and failed to provide an explanation as to why such range of motion testing could not be provided. Accordingly, a remand is warranted for a new VA examination. The matters are REMANDED for the following action: 1. The AOJ should obtain all outstanding relevant VA treatment records and any private treatment records identified by the Veteran, to include the June 8, 2021 treatment record referenced during the June 2021 VA examination that has not yet been associated with the claims file. 2. After obtaining all outstanding treatment records, schedule the Veteran for a VA examination to determine the current severity of his service-connected left knee disability. The claims file should be made available to the examiner and review of the file should be noted in the report. In doing so, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for both the joint in question and any paired joint. If it is not possible to provide a specific measurement 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. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.