Citation Nr: 21010390 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-14 175A DATE: February 24, 2021 REMANDED Entitlement to an increased rating in excess of 30 percent prior to December 1, 2015, and a rating in excess of 60 percent since February 1, 2017 and thereafter, for a ligament injury to the left knee, status post reconstructive surgery with traumatic arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1978 to June 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board finds that remand is necessary to ensure that there is a complete and adequate record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. Entitlement to an increased rating in excess of 30 percent prior to December 1, 2015, and a rating in excess of 60 percent since February 1, 2017 and thereafter, for a ligament injury to the left knee, status post reconstructive surgery with traumatic arthritis, is remanded. First, the Board notes that the matter last appeared before the Board in July 2019, at which time the Board remanded the issue and directed the RO to obtain outstanding VA treatment records since March 2019. However, in November 2019, records from only June 2019 to November 2019 were associated with the claims file. Thus, the RO is not in substantial compliance with the prior Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Second, the Board also directed an examination be obtained that is in compliance with the standards for musculoskeletal system rating regulations. However, the most recent VA examination of November 2019 VA reflects inconsistency with previous reports. The Veteran reported experiencing flareups in March 2019, whereas the November 2019 examiner indicated that the Veteran did not experience flareups. VA has a duty to conduct a thorough and contemporaneous examination of the Veteran that considers records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). VA’s duty to assist includes providing such thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran’s disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). The November 2019 examination alerts the Board that the report may not be accurate and hence is inadequate. Lastly, the RO must make additional efforts to obtain the outstanding private records following the Veteran’s December 2015 left knee surgery at Lake Charles Memorial Hospital. The Board notes that a July 2020 VA internal memo acknowledges the need to develop the claim for these records, but no further action has been taken in this regard. In order to ensure compliance with the prior remand, the RO must undertake appropriate action to obtain this evidence. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand) The matter is REMANDED for the following action: 1. Obtain any outstanding private and VA treatment records for the Veteran, notably the December 2015 left total knee joint arthroplasty surgery private records and followup examinations from Lake Charles Memorial Hospital and VA treatment records since March 2019. 2. After the above development is complete, schedule a VA examination to assess the severity of the Veteran’s left knee disability for the entire time period on appeal, including from May 19, 2009 to December 1, 2015 and since February 1, 2017. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred. An in-person examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.