Citation Nr: 21025616 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-32 065 DATE: April 28, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to an increased rating in excess of 30 percent for left total knee arthroplasty (TKA), to include entitlement to an extension of temporary total evaluation beyond March 1, 2015, based on the need for convalescence following surgery of the service-connected left knee, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to January 1970. This appeal is before the Board of Veterans’ Appeals (Board) from June 2014 and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A June 2014 rating decision reflects that the RO granted a 100 percent rating for total left knee arthroplasty, effective January 9, 2014 and then continued the rating at 30 percent, effective March 1, 2015. The RO also assigned a 10 percent rating for instability of the left knee, effective January 9, 2014. An October 2014 rating decision reflects that the RO denied service connection for his right knee disability. In November 2018, the Board remanded the knee claims to obtain and opinion regarding the nature and severity of the left knee disability before and after the Veteran’s nonservice-connected stroke. The examiner was requested to analyze the medical evidence and attempt to separate symptomatology attributed to his service-connected left knee and his nonservice-connected stroke. The RO was also asked to reconsider if entitlement to an extension of temporary total evaluation beyond March 1, 2015 based on need for convalescing following surgery on the service-connected left knee. The Board requested to obtain a medical nexus opinion for the right knee disability, to include on a secondary basis, if warranted after development. In a November 2019 VA medical opinion, the examiner summarized the Veteran’ s medical record. The examiner did not provide any opinion regarding the Veteran’s right knee. Regarding the left knee, the examiner essentially found that the symptoms due to stroke were reoccurrence of left knee pain although the level of pain was not clear. The examiner reported that the Veteran’s symptoms prior to stroke were TKA with full range of motion and lack of pain; however, he still needed a cane to walk for stabilization. The current severity of the Veteran’s service-connected left knee disability remains unclear. At the time of the November 2018 remand, the Board determined that a medical examination would be futile because the Veteran was unable to be tested because of his severe impairments. (See July 2015 VA examination). However, VA treatment records reflect that the Veteran sought VA treatment in September 2018 to establish treatment with a primary care provider. Additionally, during treatment in September 2019, the Veteran’s knees were evaluated and in September 2020, the Veteran was communicative and voiced understanding and confirmed his upcoming appointments. As the record reflects that the Veteran may be able to be evaluated during an examination, or at the very least the examiner may elicit responses from the Veteran to help assess the severity left knee disability and describe the severity, frequency, duration of any flare-ups as well as his description as to the extent of functional loss during a flare-up and after repetitive use over time, a new VA examination/opinion is necessary. Additionally, VA revised the criteria for evaluating musculoskeletal disorders effective February 7, 2021, include significant changes to disabilities evaluated under Diagnostic Code 5055, such as the Veteran’s left TKA, a new VA examination is indicated. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). On remand, the agency of original jurisdiction (AOJ) should associate with the claims file any outstanding VA treatment records. Additionally, he should be given the opportunity to provide any additional evidence in support of the claims on appeal, to include any private treatment records. The matters are REMANDED for the following action: 1. Obtain a complete copy of all VA treatment records dated since September 2020. 2. Give the Veteran an opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the appropriate authorization is provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s right knee disability. The examiner should address the following: a) Identify all current right knee disabilities. b) Opine whether it is at least as likely as not (at least a 50 percent probability) that that any right knee disability began in service, within the first post service year, or is otherwise is etiologically related to service. c) If not directly related to service, then is it at least as likely as not (50 percent or greater) that the right knee disability was either (i) caused, or (ii) aggravated beyond its natural progression by the Veteran's service-connected left knee disability? d) To the extent possible, all indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion. A rationale must be provided for all expressed opinions. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of left TKA. a) The examiner must attempt to separate symptomatology attributed to his service-connected left knee and nonservice-connected stroke, if possible. b) The examiner must ensure that the Disability Benefits Questionnaire(s) utilized in this examination include(s) the former and current rating criteria pertinent to the knees, as such was revised on February 7, 2021, and both versions may be utilized in rating the Veteran’s left knee disability. c) The examiner should address whether the Veteran had severe chronic residuals consisting of severe painful motion or weakness in the affected extremity at any point throughout the appeal period from March 1, 2015. d) The examiner should provide a full description of the current disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, 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). e) 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. 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). 5. After completing the above requested actions, and any other development deemed necessary, readjudicate the issues on appeal, to include entitlement to an extension of temporary total evaluation beyond March 1, 2015, based on the need for convalescence following surgery of the service-connected left knee. James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L.Crohe, 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.