Citation Nr: 21021557 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 13-16 292 DATE: April 13, 2021 REMANDED Entitlement to an increased rating, or further separate ratings, for a right knee disability prior to October 16, 2019, in excess of 20 percent for residuals of an ACL tear under DC 5257 and 10 percent for osteoarthritis with limitation of motion under DC 5260 is remanded. REASONS FOR REMAND The Veteran had active duty in the U.S. Army from March 1990 to June 1992 including service in Southwest Asia. These issues were previously before the Board. In September 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to issue a Statement of the Case (SOC) to address the issue of entitlement to a temporary total evaluation because of convalescence for surgery, to ask the Veteran to submit or authorize the VA to obtain all non-VA treatment records relating to his right knee disability and to notify the Veteran in accordance with 38 C.F.R. § 3.159(e), and to obtain a new VA medical opinion for the severity of the right knee disability prior to October 16, 2019. In September 2020, the AOJ asked the Veteran to submit a completed VA Form 21-4142a. The Veteran did not respond, and the AOJ did not notify the Veteran in accordance with 38 C.F.R. § 3.159(e), such as notifying the Veteran that the claim will be decided based on the evidence of record or that the Veteran is ultimately responsible for providing the evidence. In December 2020, the AOJ obtained a medical opinion for the severity of the Veteran’s right knee disability prior to October 16, 2019. In January 2021, the AOJ issued an SOC denying entitlement to a temporary total evaluation because of convalescence for surgery. The Veteran has not yet appealed this decision. Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in January 2021. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. The issue of entitlement to an increased rating, or further separate ratings, for a right knee disability prior to October 16, 2019, rated 20 percent for residuals of an ACL tear under DC 5257 and 10 percent for osteoarthritis with limitation of motion under DC 5260 As discussed above, in September 2020, the Board directed the AOJ, in pertinent part, to notify the Veteran in accordance with 38 C.F.R. § 3.159(e) if medical records were not found and that the claims file must be clearly documented to that effect. The Board’s direction was not contingent on the Veteran submitting current VA Form 21-4142a. Although in the January 2012 supplemental statement of the case, the AOJ made note that the Veteran did not respond to a request for authorization, the discussion did not make clear that the issues would be decided on the evidence of record. The AOJ’s failure to notify the Veteran in accordance with 38 C.F.R. § 3.159(e) constitutes a failure to comply with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Considering this evidence is relevant to the Veteran’s claim for increased ratings, the Board will offer the Veteran another opportunity to authorize or provide the requested private records as it is in his best interest to comply. The Board Veteran is also reminded that the VA will decide the claim based on the evidence of record and that it is his responsibility to identify pertinent evidence and to allow the VA to obtain such evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). The matter is REMANDED for the following action: 1. Ask the Veteran to submit or authorize the VA to obtain all non-VA treatment records relating to his right knee disability, to include records pertaining to the February 2018 right knee surgery. The Veteran identified treatment records by Dr. T.C. and Covington Bone and Joint and Andalusia Health Physical Therapy. As the prior authorizations provided by the Veteran have expired, new authorizations from the Veteran are needed. All efforts to obtain identified records must be fully documented in the claims file. If such records are not found, the claims file must be clearly documented to that effect. The Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) even if the Veteran did not submit and/or authorize the VA to obtain all non-VA treatment records pertaining to his right knee disability. 2. After the above development is completed and any additional records are associated with the claims file, request a new opinion by a VA examiner to provide a retrospective opinion. The examiner should review the entire claims file, including prior VA examinations, medical treatment records, and lay statements. A copy of this decision, including the remand directives, should be provided to the VA examiner. The respective opinion should consider functional loss from March 2010 to February 2018, for the time period prior to when the Veteran had right knee surgery. To the extent possible, the examiner should provide findings as to what the Veteran’s range of motion of the right knee was during that time period, including flexion and extension in active motion, passive motion, weight-bearing, and nonweight-bearing. Each finding should be supported with corresponding medical evidence or lay statements. The examiner should provide an opinion to what extent the Veteran’s range of motion prior to the February 2018 surgery was additionally limited due to factors such as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right knee is used repeatedly over a period of time. The examiner should glean information from the Veteran, lay statements, and from the medical evidence found in the claims folder regarding his pre-surgical flare-ups, the severity of these flares, frequency, duration, and functional loss manifestations. The examiner should describe further functional impairments, if feasible, in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. If the examiner is unable to provide any part of this retrospective opinion, the examiner must provide a clear explanation why such an opinion cannot be provided.   A complete rationale for all requested opinions is required, to include discussion of medical evidence used to formulate the opinion. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun, 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.