Citation Nr: 21076004 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-09 338 DATE: December 22, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected left knee strain with degenerative arthritis (left knee condition) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from November 1990 to June 1991, October 1992 to October 1995, September 1999 to May 2000, and January 2004 to March 2005, with additional service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in March 2020, January 2021, and June 2021. In September 2018, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See September 2018 Board Hearing Transcript. Entitlement to an initial rating in excess of 10 percent for service-connected left knee condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of three prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the June 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in June 2021, the Board instructed the AOJ to provide the Veteran with a VA examination regarding the nature and severity of his service-connected left knee condition. As part of this examination, the examiner was instructed to provide a retrospective opinion, utilizing the Veteran's medical records and lay history, regarding the severity of the Veteran's left knee condition from December 2013 to current. Though the Veteran was afforded a VA examination in October 2021, no retrospective opinion concerning the severity of the Veteran's left knee condition from December 2013 to current was provided. Rather, the examiner merely noted that no significant changes had occurred since the February 2016 VA examination. See October 2021 VA Knee and Lower Leg Disability Benefits Questionnaire (DBQ); October 2021 VA Medical Opinion DBQ. As the Board cannot find substantial compliance with the June 2021 remand directives, a remand is necessary to allow the AOJ to obtain an opinion that substantially complies with the Board's directives. See Stegall v. West, supra. Lastly, the Board notes that, in January 2021 and July 2021, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers that provided him with treatment pertinent to his claimed condition. The AOJ also provided the Veteran with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain his medical records on his behalf. See January 2021 Correspondence; July 2021 Correspondence. To date, the Veteran has not responded to either request. VA's duty to assist is not a "one-way street", and a veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, as a remand of this matter is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. The Veteran is cautioned that failure to cooperate with any requested development may result in the denial of his claim. 38 C.F.R. § 3.655. Accordingly, the matter is REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the claims file any outstanding pertinent medical records, whether VA or private, including records relating to treatment at the Mayo Clinic, as well treatment at Minneapolis VA Medical Center from October 2021 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, return this matter to the October 2021 examiner and obtain an addendum opinion regarding the severity of the Veteran's service-connected left knee condition. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, or if the October 2021 examiner is unavailable, or if pertinent medical records are obtained above, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is conducted: i. Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. If the Veteran describes flare-ups, document the frequency, severity, and duration thereof. ii. Test and document the ROM for the left and right knees in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. FOR EACH ROM, THE EXAMINER IS ASKED TO EXPLICITLY IDENTIFY THE DEGREE IN WHICH PAIN IS FIRST EVIDENCED BY THE VETERAN'S VISIBLE BEHAVIOR. If the examiner is unable to conduct the required testing or concluded that the required testing is not necessary in this case, a thorough explanation should be provided. iii. Identify the nature and severity of all current manifestations of the Veteran's service-connected left knee conditions. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. iv. If the Veteran describes flare-ups, after documenting the frequency and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. (b.) Provide a RETROSPECTIVE OPINION, utilizing the Veteran's medical records and lay history, and opine as to the severity of the Veteran's service-connected left knee conditions from December 2013 to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to range of motion (ROM), if possible. If the examiner is unable to render such an opinion, the examiner should specifically state why and provide a rationale for the determination. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.