Citation Nr: 21009908 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-44 098A DATE: February 23, 2021 REMANDED Entitlement to a disability rating greater than 20 percent for degenerative arthritis, left knee with history of medial meniscectomy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1969 to March 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The May 2014 rating decision denied a disability rating in excess of 20 percent for the Veteran’s left knee disability. In January 2019 the Board remanded the claim to the RO for further development including a VA examination. The Board observes that there have been extenuating circumstances such that further remand is appropriate. Entitlement to a disability rating greater than 20 percent for degenerative arthritis, left knee with history of medial meniscectomy The Veteran contends that the 20 percent disability rating does not contemplate the severity of his left knee symptoms. In its January 2019 remand, The Board directed the RO to undertake additional development of the Veteran's claim, to include completing a VA examination. Under 38 C.F.R. § 3.655, where entitlement or continued entitlement to a benefit cannot be established or confirmed without current VA examination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Listed examples of good cause include illness or hospitalization of claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). In September 2019 the RO advised the Veteran that a VA contractor would be in contact to inform him of the date, time and location of his left knee VA examination. The RO also noted that if the Veteran failed to report without good cause his claim would be decided based upon existing evidence. On October 7, 2019 the RO sent the Veteran a letter indicating that the contractor made them aware that the Veteran was unable to complete the examination due to a recent stroke. The Veteran was asked to contact them so that a joint decision on how to proceed with the Veteran’s claim could be made. A copy of the letter was provided to the Veteran’s representative. In May 2020 the RO deferred the rating decision in order to contact the Veteran to reschedule his knee examination. In July 2020 an examination was scheduled for the Veteran by a VA contract examiner. Subsequently, the contract examiner advised the RO that the Veteran cancelled his examination as he no longer wished to pursue his claim. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204(c). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and meet certain requirements set forth by regulation. They must include the name of the appellant, the applicable file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.204(b)(1). In August 2020, the RO notified the Veteran that it had received a cancellation from the VA contractor indicating that he did not wish to pursue his left knee claim. The Veteran was advised by letter that the withdrawal of an appeal must be in writing in accordance with VA regulations. A form was enclosed for that purpose. In November 2020 the Veteran was notified that his claim had been returned to the Board. The American Legion expressed concern in its Informal Hearing Presentation regarding the VA contractor’s statement given that there was no recording of the Veteran’s statement or other proof of what transpired during the telephone call. The Veteran’s high-risk for complications with a COVID-19 infection as a Vietnam era veteran was also mentioned as a consideration for his cancellation. As the Veteran has not withdrawn his claim in writing and has shown good cause for not appearing at his examinations, the claim is remanded for confirmation of withdrawal, or a new examination which includes joint testing for 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. In addition, the examiner must describe the frequency, duration, characteristics, severity, and functional loss due to flare-ups, if any. This matter is REMANDED for the following action: 1. Contact the Veteran by telephone and by letter to determine his willingness to attend a VA examination of his left knee in conjunction with his claim for an increased disability rating. If the Veteran wishes to withdraw his claim provide him with instructions and assistance in withdrawing his claim. 2. Should the Veteran wish to proceed with his claim, ask him to identify the provider(s) of any evaluations and/or treatment received for his left knee conditions from 2014 to the present. Provide authorizations for VA to obtain records of any such private treatment. Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the claims file. If a provider does not respond to VA’s request for the identified records sought, the Veteran must be so notified and reminded that it is ultimately his responsibility to ensure that private treatment records are received. 3. Schedule the Veteran for an examination by an appropriate clinician examination (or a telehealth interview with review of the expanded record, if an in-person examination is not feasible) to determine the current severity of his service-connected left knee osteoarthritis with history of meniscal removal. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee osteoarthritis with history of meniscal removal and its effects 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 based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. The Veteran must be advised that a subsequent failure to appear for examination will necessarily require a decision based on the evidence of record. See 38 C.F.R. § 3.655. 4. After the above development has been completed, review the record and ensure that all development sought in this remand has been completed. Arrange for any further development indicated by the results of the development requested above, if deemed warranted by the RO, and re-adjudicate the claim. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.