Citation Nr: 21022325 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-08 597 DATE: April 15, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for chronic left knee pain with osteoarthritis is remanded. Entitlement to an evaluation in excess of 10 percent for chronic right knee pain with osteoarthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1992 to July 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, the Board remanded the appeal for further development. A February 2020 Board decision denied the appeal. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). A November 2020 Order of the Court granted the parties’ Joint Motion for Remand (JMR), vacated the Board’s decision, and returned the claim to the Board.   1. Entitlement to an evaluation in excess of 10 percent for chronic left knee pain with osteoarthritis is remanded. 2. Entitlement to an evaluation in excess of 10 percent for chronic right knee pain with osteoarthritis is remanded. In the November 2020 JMR, the parties stipulated that the February 2020 Board decision failed to adequately explain whether the November 2015 VA examination was adequate in light of the Court’s decision in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Board acknowledges that the 2015 examination was not fully compliant with Correia. A retrospective opinion is needed. VA correspondence dated in January 2016 appears to reflect that the Veteran reported worsening severity of his bilateral knees. As the last VA examination was several years ago, and considering the additional development required in this case, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current nature and severity of his bilateral knee disabilities. The examination should, if possible, clarify whether the range of motion measurements recorded at November 2015 VA examination were conducted under active or passive conditions as noted in the JMR. The JMR also reflects that the February 2020 Board decision failed to explain whether the duty to assist was satisfied in light of the private treatment records (from Dr. R.H., dated in 1996, and from January 30, 2013 to May 1, 2013) that were identified by the record but not obtained. Remand is required to allow VA to obtain authorization and request these and any other relevant, outstanding medical records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2015 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any and all non-VA physicians and/or /facilities that have treated his service-connected left and right knee disabilities, to specifically include records from Dr. R.H. dated in 1996, and from January 30, 2013 to May 1, 2013; and from Otsego Memorial located in Gaylord, Michigan. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. The examiner should provide a full description of the Veteran’s disabilities and report all signs and symptoms necessary for evaluating the disabilities under the rating criteria. a) In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing and record the results of the range of motion testing in each state. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). b) If possible, a retrospective opinion should be provided as to whether the “initial ROM measurements” recorded at the November 2015 were conducted under ‘active’ or ‘passive’ conditions. c) The examiner should also discuss the additional functional impairment that occurs during flare-ups or with repeated use over time, and report any additional loss of motion in degrees. If the Veteran is not being observed during a flare-up, the examiner must estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of flare-up severity, frequency, duration, and/or functional loss manifestations. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Caban, 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.