Citation Nr: 21015670 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-04 799 DATE: REMANDED Entitlement to a rating in excess of 10 percent for a left knee disability prior to October 14, 2014, and in excess of 30 percent as of December 1, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1991 to April 1993. In May 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript of the hearing is of record. In November 2014, September 2016, January 2018, and January 2020, the Board remanded this claim for additional development. Entitlement to a rating in excess of 10 percent for a left knee disability prior to October 14, 2014, and in excess of 30 percent as of December 1, 2015, is remanded. Although the Board regrets the additional delay, remand is again necessary to obtain outstanding VA treatment records, with additional action also warranted while on remand. Current VA treatment records from the Tampa VA medical system appear incomplete. The Board remanded the Veteran's claims in January 2020 and a remand directive was to "obtain any outstanding VA or private treatment records." However, VA treatment records were last associated with the claims file in March 2017. The record indicates additional VA treatment since that date. Notably, July 2020 and August 2020 supplemental statements of the case list evidence including "VAMC (Veterans Affairs Medical Center) treatment records, Tampa, from February 18,1999 through July 21, 2020." Additionally, the Board finds that an examination is needed. The Veteran attended a VA examination in March 2020. While the Board appreciates the examiner’s findings and conclusions, they are incomplete. As with the January 2019 VA examiner, the March 2020 examiner did not address whether there is severe painful motion or weakness in left knee, as requested by the Board in the remand instructions. The examiner also did not provide an opinion as to whether the Veteran’s reported flare-ups with emergency treatment and with pain rated between 7 and 9 out of 10 represented occasional incapacitation or chronic severe painful motion. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21Vet. App.303 (2007). Therefore, the January 2020 Board remand directives have not been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the AOJ reviewed VA treatment records that are not of record for review by the Board, which raises due process concerns. 38 U.S.C. § 5103A. Remand is therefore required to obtain outstanding VA treatment records, which includes Tampa VA Medical Center records from March 2017 and to obtain an examination. The matters are REMANDED for the following action: 1. With any necessary authorization from the Veteran, obtain any outstanding VA or private treatment records, specifically to include Tampa VA Medical Center records from March 2017 to the present. All attempts to locate records must be documented in the claims file. 2. Then, schedule the Veteran for a VA joints examination to determine the current nature and severity of a service-connected left knee disability. The examiner must review the claims file and should note that review in the report. All appropriate tests and studies must be accomplished, and all clinical findings must be reported in detail. The medical and lay evidence of record should be taken into account and a rationale must be provided for any opinion expressed, to include reference to pertinent evidence where appropriate. The examiner should specifically state ranges of motion for active and passive motion and on weight-bearing and nonweight-bearing. The examiner should comment on whether there is any additional loss of function due to weakened movement, excess motion, incoordination, fatigability, pain on use, or on flare up. The examiner should describe any claimed flare ups, to include the frequency and severity, and opine as to any additional functional loss on flare up. If the examiner is unable to accomplish any of the required range of motion testing, the examiner should explain why. The examiner should describe the severity of any recurrent subluxation or lateral instability and should specifically state whether or not recurrent subluxation or lateral instability is shown. The examiner should opine whether the reported flare-ups with hospitalization and pain rated between 7 and 9 out of 10 represent occasional incapacitation or chronic severe painful motion. In addition, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that there is severe painful motion or weakness in the knee. The examination should include a statement as the effect of the service-connected left knee disabilities on the Veteran’s occupational functioning and daily activities. The examiner should provide a complete rationale for any opinions provided. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Duke, 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.