Citation Nr: 21009824 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-18 980 DATE: February 23, 2021 REMANDED Entitlement to a disability evaluation in excess of 10 percent for right knee chondromalacia is remanded. Entitlement to a disability evaluation in excess of 10 percent for left knee chondromalacia is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1971 to June 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his May 2015 VA Form 9, the Veteran indicated that he wanted to testify at a Board videoconference hearing. Although a Board videoconference hearing was scheduled for July 2018, it was cancelled by the Veteran beforehand. These matters had been previously certified to the Board in July 2015, with the Veteran receiving written notice that his appeal had been formally placed on the Board docket in July 2018. This July 2018 correspondence notified the Veteran that he had 90 days from the date of the correspondence or until the Board issued a decision in his appeal (whichever occurred first) to submit additional argument or evidence. See generally, 38 C.F.R. § 20.1304. However, it was not until January 2021, several years later, that the Board received correspondence from the Veteran’s representative requesting that another Board videoconference hearing be scheduled. If a hearing request is received more than 90 days after notice of certification, then the appellant must show good cause for the delay. 38 C.F.R. § 20.1304(b). Here, the request for a hearing was not received within 90 days the date the Veteran was notified of certification of his appeal to the Board. Further, he was informed of this 90-day period in the July 2018 correspondence, and good cause has not been offered for the delay. Consequently, the Board does not accept the delayed hearing request. The Veteran seeks entitlement to higher disability evaluations for his service-connected right knee chondromalacia and left knee chondromalacia. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. A review of the Veteran’s private treatment records from Dunbar Medical Associates in Hurricane, West Virginia, reveals that he was diagnosed as having some osteoarthritis of the bilateral knees in June 2014. The Veteran was then provided with a VA Knee and Lower Leg Conditions examination in August 2014, at which time he was diagnosed as having chondromalacia of the bilateral knees. Significantly, this examination report indicated that imaging studies of the knee had been performed and that the results were available. However, the examination report did not specify when these imaging studies were conducted, and no imaging studies appear to be associated with the report. Nonetheless, based on these imaging studies, the August 2014 VA examiner concluded that degenerative or traumatic arthritis was not documented, that the Veteran did not have X-ray evidence of patellar subluxation, and that there were not any other significant diagnostic test findings and/or results. The August 2014 VA examiner further concluded that the Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. In his May 2015 VA Form 9, the Veteran argued that the August 2014 VA Knee and Lower Leg Conditions examination was not adequate because the examiner spent only approximately 10 minutes before leaving the examination prematurely, and that his bilateral knee symptoms were worse than reflected on the August 2014 examination report. The Veteran was then provided with another VA Knee and Lower Leg Conditions examination in June 2015, at which time he was again diagnosed as having chondromalacia of the bilateral knees. Significantly, the June 2015 VA examination report indicated that no imaging studies of the bilateral knees had been performed. Nonetheless, the VA examiner indicated that the Veteran now had a meniscus (semilunar cartilage) condition, manifested by frequent episodes of joint “locking” and frequent episodes of joint pain in the right knee. However, joint effusion was not indicated. Additionally, the examination report did not indicate a diagnosis of arthritis. The Board notes that evidence of dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint would warrant a 20 percent disability evaluation under Diagnostic Code 5258. Additionally, potentially higher disability evaluations could be available for degenerative or posttraumatic arthritis established by X-ray findings under Diagnostic Code 5003 or Diagnostic Code 5010. However, given the inconsistent diagnoses of osteoarthritis and meniscus abnormality currently of record, the apparent lack of any imaging studies of the bilateral knees in the record, and the span of six years that has elapsed since the most recent VA examination, the Board finds that an additional VA examination should be obtained in order to ascertain the current nature and severity of the Veteran’s service-connected right and left knee disabilities. Although, generally, the mere passage of time is not a sufficient basis for a new examination, see Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007), the proper rating of a disability requires a contemporaneous examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). Additionally, the United States Court of Appeals for Veterans Claims (Court) has issued the decision in Correia v. McDonald, 28 Vet. App. 158, 166 (2016), concerning the adequacy of VA orthopedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. As such, on remand, the examination report should include findings consistent with the provisions articulated in Correia. Finally, the June 2014 private progress note from Dunbar Medical Associates which diagnosed the Veteran as having osteoarthritis in his bilateral knees also indicated that the Veteran would be referred to an orthopedic specialist for his osteoarthritis when he was ready. However, no records from a private orthopedist have been associated with the claims file. On remand, the Veteran should be provided with and asked to complete a VA Form 21-4142 (Authorization to Disclose Information to VA) and a VA Form 21-4142a (General Release for Medical Provider Information to VA) so that any additional private treatment records relevant to his service-connected knee disabilities can be obtained and associated with the claims file. The matters are REMANDED for the following action: 1. Request that the Veteran complete a VA Form 21-4142 and VA Form 21-4142a for records from each provider of private medical treatment relevant to his service-connected disabilities of the right knee and left knee. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, then the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, then the claim may be readjudicated. 2. Obtain updated VA treatment records. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected disabilities of the right knee and left knee. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed, to include imaging studies. All findings should be reported in detail, and all imaging studies should be included with the examination report. The examiner should identify all disabilities found to be present, to include any arthritis and/or dislocated semilunar cartilage identified through imaging studies. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and/or incoordination present. The examiner should also state whether the examination is taking place during a period of flare up. If not, then the examiner should ask the Veteran to describe the flare ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare ups or after repetitive use without resorting to speculation, then the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Finally, the Board would find it immensely helpful if the examiner would, when feasible, indicate the severity of the Veteran’s knee disabilities throughout the entire period on appeal (from June 2014 to present). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.