Citation Nr: 21025346 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 08-29 473 DATE: April 27, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent disabling for a partial meniscectomy of the left knee for the period prior to September 8, 2014 is remanded. Entitlement to an evaluation in excess of 20 percent for a partial meniscectomy of the left knee for the period from September 8, 2014 to February 3, 2015 is remanded. Entitlement to an evaluation in excess of 30 percent disabling for a partial meniscectomy of the left knee for the period since April 1, 2016 is remanded. Entitlement to an evaluation in excess of 10 percent disabling for a right knee donor site bone patellar graft is remanded. Entitlement to an evaluation in excess of 10 percent disabling for left knee instability for the period since July 2, 2012 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from October 1980 to May 1984, and in the United States Naval Reserve from April 2003 to May 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The issues on appeal were previously before the Board in September 2020, when they were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. The Board notes that the Veteran’s representative indicated in a January 2021 letter that the organization was unclear whether or not they represented the Veteran. The record reflects that at the time of the Board’s September 2020 remand, the Veteran was represented by the American Legion. The record does not reflect that he subsequently revoked the American Legion’s representation in this appeal or otherwise appointed a new representative. 1. Entitlement to an evaluation in excess of 10 percent disabling for a partial meniscectomy of the left knee for the period prior to September 8, 2014 is remanded. 2. Entitlement to an evaluation in excess of 20 percent for a partial meniscectomy of the left knee for the period from September 8, 2014 to February 3, 2015 is remanded. 3. Entitlement to an evaluation in excess of 30 percent disabling for a partial meniscectomy of the left knee for the period since April 1, 2016 is remanded. 4. Entitlement to an evaluation in excess of 10 percent disabling for a right knee donor site bone patellar graft is remanded. 5. Entitlement to an evaluation in excess of 10 percent disabling for left knee instability for the period since July 2, 2012 is remanded. In the September 2020 remand, the Board directed the AOJ to contact the VA examiner who completed a June 2019 examination related to the Veteran’s knees and request that they provide a copy of their curriculum vitae (CV) or resume Upon receipt of such, the AOJ was to associate the document with the record and provide the Veteran and his representative a copy of the document. The Board noted that if the requested CV was not obtainable, the Veteran and his representative should be notified and the reasons for such should be documented in the record. The Board then directed the AOJ to schedule the Veteran for an examination or telehealth interview by an appropriate clinician to determine the nature and severity of his knee disabilities. When the Board remands an appeal, a claimant is entitled to substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). The record reflects that the AOJ requested the CV from the examiner that conducted the June 2019 examination and afforded the Veteran an examination to determine the nature and severity of his knee disabilities. However, in a copy of an email chain between the June 2019 examiner and AOJ personnel, the examiner stated, “I am hesitant to give out my personal information when I am not required to do so,” and the record does not indicate that the AOJ otherwise obtained the requested information from that examiner. This is particularly relevant since the June 2019 examiner also conducted the October 2020 examination scheduled by the AOJ pursuant to the Board’s September 2020 remand. As discussed in the Board’s September 2020 remand, when a Veteran challenges the qualifications of a VA examiner to conduct a particular examination or offer a medical opinion, VA must satisfy its burden of persuasion as to the examiner’s qualifications Francway v. Wilkie, 940 F.3d 1304,1308 (Fed. Cir. 2019). In order to do this, the Board must make factual findings regarding the qualifications of the examiner and provide reasons and bases for concluding whether or not the examiner was competent to provide the offered opinion. Id. Once information about a VA examiner’s credentials has been requested, the claimant “has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by VA’s duty to assist.” Id. The Board finds that the AOJ’s failure to obtain the requested information on the credentials of the June 2019 examiner did not substantially comply with the instructions set out in the September 2020 remand, particularly in light of the fact that the same examiner conducted the VA examination that was also requested in that remand. The Board notes that Francway cements a claimant’s right to information regarding the qualifications of an examiner, absent unusual circumstances. While there are certainly instances where circumstances might preclude VA from being able to provide such information, for example where VA is unable to contact an examiner and records containing the relevant information are unavailable, an examiner’s personal preference not to provide requested information about their qualifications falls far short of “unusual circumstances.” Allowing such an unquestioned refusal would essentially render the Federal Circuit Court’s holding in Francway without any precedential effect. Therefore, remand is necessary so that the AOJ can attempt to obtain a copy of the CV or resume of the June 2019/October 2020 examiner. See Stegall, supra. If the AOJ is unable to obtain the requested information from that examiner, the AOJ should schedule the Veteran for an examination to determine the nature and severity of his knee disabilities with another qualified examiner who will provide a CV or resume evidencing that examiner’s qualifications to conduct the examination. The matters are REMANDED for the following action: 1. Contact the VA examiner who completed the June 2019 and October 2020 VA examinations related to the Veteran’s knees and request that they provide a copy of their curriculum vitae (CV) or resume. Upon receipt of such, associate the document(s) with the record and provide the Veteran and his representative with a copy thereof. If the requested CV is not obtainable, the Veteran and his representative should be notified and the reasons for such should be documented in the record. 2. If the AOJ is unable to obtain a CV or resume from the examiner who conducted the June 2019 and October 2020 examinations, the AOJ should schedule the Veteran for an examination with an appropriately qualified examiner, who provides a CV or resume evidencing their qualifications to conduct the requested examination that is associated with the claims file, to determine the nature and severity of the Veteran’s bilateral knee disabilities. If a new examination is necessary, the examiner must test the Veteran’s active motion, passive motion, and pain with weight bearing and without weight bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during such flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the knee disabilities alone and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment 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). The examiner must specifically address the flare-ups reported by the Veteran throughout his medical record; the bilateral knee arthritis shown on diagnostic testing; his reports of instability of his knees; and his knee pain resulting in functional limitation. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran’s statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed and discuss relevant evidence where appropriate. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ferguson, 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.