Citation Nr: 21024462 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-10 601A DATE: April 22, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for traumatic arthritis of the left knee, status post anterior cruciate ligament reconstruction (left knee disability) is remanded. REFERRED Entitlement to a total disability (TDIU) rating based on individual unemployability due to service-connected disability has been raised by the record in a January 2013 statement and is referred. REASONS FOR REMAND The Veteran had active duty service from July 1992 to April 1996. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from an October 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2020, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional development. The matter has now returned to the Board for review. In May 2018, the Veteran testified in a video conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In March 2021, the Veteran and his representative were notified that the VLJ who conducted the May 2018 hearing was no longer employed by the Board, and he was offered the opportunity to testify before a different VLJ. The Veteran was informed that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing. The Veteran did not respond to request another hearing, and thus the Board will proceed accordingly. Entitlement to an increased rating in excess of 10 percent for service-connected left knee disability is remanded. Further AOJ action on the claim on appeal is required. While pursuant to the Board remand the AOJ obtained a VA examination for the Veteran’s left knee disability, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements and pain on weight-bearing testing and measurements. A new examination which addresses the requirements in Correia is necessary before a decision on the merits may be made. Thus, the RO did not substantially comply with the Board’s remand directives in violation of Stegall v. West, 11 Vet. App. 268, 271 (1988). The matters are REMANDED for the following action: 1. Update the Veteran’s VA treatment records for the period from July 2020 to the present. 2. Schedule the Veteran for an examination to determine the current severity of her service-connected left knee disability. The examiner should provide a full description of the Veteran’s disability and report all signs and symptoms necessary for evaluating his disability under the rating criteria. (Continued on the next page)   The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). Additionally, 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. If it is not possible to provide a specific measurement 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. Again, 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). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary 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.