Citation Nr: 21074655 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-01 979 DATE: December 15, 2021 REMANDED Entitlement to an increased rating for left knee tricompartmental degenerative joint disease (rated at 10 percent as left knee tricompartmental degenerative joint disease for the period prior to April 20, 2018 and at 30 percent for residuals of a left knee replacement for the period from April 1, 2019 through the present) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1987 to November 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In June of 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge and a transcript of the hearing is of record. While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran's claim. During the June 2021 video conference hearing, the Veteran asserted that the most recent VA examination is outdated and indicated that the severity of the Veteran's left leg disability has worsened since 2017 when his last examination took place. In light of that assertion, the Veteran should be afforded a contemporaneous VA examination to assess the current nature, extent, and severity of his left leg condition. See e.g. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Updated VA treatment records should also be requested. 38 U.S.C. § 5103A (c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). This remand and the accompanying directives are further necessitated for one additional reason. In this case, the Veteran is currently rated, in relevant part, at 10 percent for his left knee disability for the period prior to April 20, 2018 (as left knee tricompartmental degenerative joint disease) and at 30 percent from April 1, 2019 through the present (as residuals of a left knee replacement for the period). However, the criteria for several Diagnostic Codes pertaining to the knee were revised during the pendency of this appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Given these regulatory changes, the Board finds that affording the Veteran the opportunity to attend a new VA examination is also necessary to ensure that the Veteran is rated appropriately in accordance with the laws in place at this time. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file. (Continued on the next page) 2. Following the completion of step one, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left knee condition with an appropriate examiner. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner is specifically asked to opine whether there is additional limitation of motion upon flare-ups or on repetitive use. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee disability alone and discuss the effect of the Veteran's right knee condition on any occupational functioning and activities of daily living. 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). The examination should also address whether there is reduced muscle strength, an antalgic gait, and/or knee locking. 3. After undertaking any additional development deemed necessary, readjudicate the claims on appeal, to include consideration of whether separate rating(s) are warranted under a different Diagnostic Code. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.