Citation Nr: 21071671 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-53 381 DATE: December 1, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left knee disability (previously characterized as degenerative joint disease of the left knee, status post left knee meniscotomy, and now characterized as degenerative joint disease, status post left total knee replacement) from December 8, 2015 to July 1, 2021, and in excess of 30 percent from January 1, 2022, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1972 to April 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In September 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Later in September 2020, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. In August 2021, while the case was in remand status, the AOJ increased the rating for the Veteran's left knee disability to 100 percent, effective July 2, 2021 to December 31, 2021, based on total knee replacement surgery he underwent on July 2, 2021, with a 30 percent rating in effect thereafter. The 10 percent rating for the period on appeal prior to July 2, 2021 was otherwise confirmed and continued and the case was returned to the Board. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to afford him every possible consideration. Entitlement to a disability rating in excess of 10 percent for left knee disability from December 8, 2015 to July 1, 2021, and in excess of 30 percent from January 1, 2022, is remanded. In its September 2020 remand, the Board instructed the AOJ, among other things, to schedule the Veteran for a new VA examination for purposes of assessing the severity of the Veteran's left knee disability. The record reflects that a VA examination was scheduled, but the Veteran reportedly cancelled due to impending left knee replacement surgery. On July 26, 2021, he was afforded a VA knee examination, but the examiner was unable to test the left knee due to the fact that the total knee replacement had been performed so recently. While the Board recognizes that a VA examination was not practicable for rating purposes during the Veteran's period of convalescence, it finds that a retrospective opinion regarding the severity of the Veteran's left knee disability is warranted, as well as an examination to determine the current severity of the disability. Additional development is necessary. This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any private healthcare providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, schedule the Veteran for an examination of his left knee. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. If such testing is not feasible, the examiner should explain why. The examiner should also provide a retrospective opinion with respect to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran had pain on passive motion and/or with non-weight bearing during the period from December 8, 2015 to July 1, 2021. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time, both currently and during the period from December 8, 2015 to July 1, 2021. If the Veteran suffers from such loss, or has suffered in the past from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. The examiner should also address the impact of ameliorative medication. Specifically, the examiner should attempt to estimate what the Veteran's level of functional loss would be, in terms of degrees of limitation of motion, instability, etc., to include as due to flare-ups and repeated use over time, if no medication was used. The opinion should address the Veteran's disability both currently and during the period from December 8, 2015 to July 1, 2021. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, to include lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be re-adjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.