Citation Nr: 21075549 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-07 109 DATE: December 20, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for right knee arthritis is remanded. Entitlement to an effective date prior to May 23, 2019 for service connection for left knee instability is remanded. Entitlement to an effective date prior to May 23, 2019 for service connection for right knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to July 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in September 2018, October 2019, and November 2020. In September 2018 and October 2019, the claims were remanded for further development. In November 2020 entitlement to a disability rating in excess of 10 percent for left and right knee arthritis, entitlement to a disability rating in excess of 10 percent for left and right knee instability and entitlement to an effective date prior to May 2019 for left and right knee instability were denied. The Veteran appealed the November 2020 Board decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in May 2021, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand. In an Order issued in June 2021, the Court vacated the Board's decision and remanded the matters of an increased rating for left and right knee arthritis and an earlier effective date for entitlement to service connection for left and right knee instability, for readjudication in light of the Joint Motion. The Court dismissed the issue of entitlement to a disability rating in excess of 10 percent for left and right knee instability because the Veteran withdrew his appeal to the Court. Thus, the issue of an increased rating for left and right knee instability are not before the Board. The matters of an increased rating for left and right knee arthritis and an earlier effective date for entitlement to service connection for left and right knee instability are now returned to the Board for action consistent with the Joint motion. As a final preliminary matter, the Board observes that the Veteran reportedly submitted a video of his attempt to perform a 30 second Chair Stand Test in August 2021. While still images from this test are included in the file, the video is not available for review. However, even if such a video was available, the Board is required to consider only independent medical evidence to support its findings rather than draw its own medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 172 (1990). As discussed below, the Veteran's appeal is being remanded to obtain additional medical evidence that will assess his limitations. Entitlement to an increased rating for left and right knee arthritis Once VA undertakes to provide an examination or obtain an opinion, it must ensure that it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the parties agreed the Board erred when it failed to provide an adequate examination. Specifically, the May 2019 and January 2020 VA knee examinations were "unclear from the examiner's notation regarding the appellant's range of motion on flexion and extension of [his] leg whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." Accordingly, remand is necessary to correct these deficiencies. Earlier effective date for left and right knee instability In the joint motion, the parties agreed the Board erred by wrongfully requiring medical evidence to establish a rating of instability under diagnostic code 5257. The Board must provide a written statement of its findings and conclusions, and the reasons and bases for those findings and conclusions, on all material issues of fact and law presented on the record. The parties also agreed the Board did not address the Veteran's November 2011 knee instability contention. A remand is warranted for an adequate statement of reasons and bases addressing entitlement to an earlier effective date for the grants of service connection for left and right knee instability, to include adequately addressing lay evidence of instability. The record indicates that the Veteran began receiving private treatment for his knee disability from Dr. F.M. in November 2011. The Veteran authorized VA to obtain his private records in a November 2011 authorization form. It does not appear that an attempt was made to obtain any treatment records from this provider. In light of the Veteran's request that VA obtain his private treatment records, a remand is necessary to ensure compliance with the duty to assist the Veteran. 38 C.F.R. § 3.159(c)(1). The record also indicates the Veteran has a private primary care physician. See November 2016 and 2017 CAPRI records received May 4, 2019. The October 2019 Board remand requested the Veteran submit or authorize the VA to obtain his private primary care records. The Veteran has not provided those records or authorized the VA to obtain those records on his behalf. Since the claim is being remanded for additional development, the Veteran should be afforded an additional opportunity to submit or authorize VA to obtain those private treatment records. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. The matters are REMANDED for the following action: 1. Request the Veteran's private treatment records from Dr. F.M., as identified by the Veteran in the November 2011 VA Form 21-4142. 2. Contact the Veteran to determine if there are any outstanding, relevant private treatment records. If so, undertake all appropriate development necessary to obtain the records from each private treatment provider and/or facility identified by him. 3. Schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with the Veteran's left and right knee disabilities. Conduct all tests and examinations deemed necessary, to include range of motion testing with active and passive motions as well as with weight-bearing and in nonweight-bearing. If any motion cannot be tested, explain why. If factors, such as pain, weakness, fatigability or incoordination limit range of motion or functional ability, discuss its impact in terms of the severity thereof. The examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use, and if so, estimate range of motion during flare-ups or repetitive use. If the examination does not take place during a flare-up or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flare-ups or repetitive use and provide the extent of motion loss described in terms of degrees based upon the lay and medical evidence of record. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. Additionally, the examiner should review the Veteran's claims file, specifically the May 2019 and January 2020 knee examination reports and provide retrospective opinions regarding loss of range of motion due to pain or what the range of motion the pain resulted in functional loss, especially since the Veteran reported pain during extension but his range of motion for extension was noted to be normal. In doing so, the examiner should discuss the historical severity of the Veteran's range of motion with both active and passive motions as well as in weight-bearing and non-weight-bearing, to include during any flare-up episodes or with repeated use over time. If factors, such as pain, weakness, fatigability or incoordination limited range of motion or functional ability, discuss its impact in terms of the severity, frequency and duration thereof. If possible, the examiner should provide an estimate of his range of motion in degrees. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.