Citation Nr: 21028766 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-39 115 DATE: May 12, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for a right knee disability is remanded. Entitlement to an initial rating higher than 10 percent for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty service July 2006 to May 2013. 1. Entitlement to an initial rating higher than 10 percent for a right knee disability is remanded. 2. Entitlement to an initial rating higher than 10 percent for a left knee disability is remanded. The Veteran seeks higher disability ratings than those currently assigned for his right and left knee disorders. The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, a review of the claims file reveals that the prior VA knee examination in April 2014, does not fully comport with the requirements of Correia and therefore is inadequate for rating purposes. Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. Accordingly, a new VA examination is necessary. Additionally, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). When again adjudicating the Veteran's claim it should do so under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, with the criteria that is more favorable to the Veteran being applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Further, the Veteran requested a Board videoconference hearing in his August 2016 substantive appeal to the Board, via VA Form 9. A hearing was scheduled in July 2019, but the Veteran failed to report for the hearing. However, it is unclear whether the Veteran received notice of the hearing at his current mailing address. The record indicates that correspondence sent to the same address as the notice of the Board hearing, was returned as undeliverable. While on remand, the Veteran's current mailing address needs to be confirmed, and the Veteran should clarify whether he still desires a Board hearing. Finally, any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). The matters are REMANDED for the following action: 1. Take appropriate steps to identify the Veteran's correct mailing address. 2. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for the disabilities on appeal, and complete and return an appropriate authorization form for each treatment provider identified (if any). After obtaining the completed release forms, request all identified pertinent medical records (if any). If possible, the Veteran should get these records and submit them himself to expedite the case (if any). 3. Schedule the Veteran for a VA examination to assess the current severity of his service-connected right and left knee disabilities, to include any functional effects. The Veteran's claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. (a) The examiner should determine the range of motion of the Veteran's right and left knees in degrees. Range of motion testing must include both passive and active motion, and in weight-bearing and nonweight-bearing conditions, and the range of the opposite undamaged joint. It should be indicated whether and at what point during the Veteran's range of motion he experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. If the Veteran endorses flare-ups of symptoms the examiner must comment on the functional limitations of the right and/or left knee during flare-ups, and the effect of pain on range of motion. If there is no flare-up at the time of the examination, the examiner is asked to opine on further functional limitations based on the Veteran's subjective complaints and history. (b) The examiner should state whether there is right and/or left knee instability that is best characterized as moderate or severe. (c) The examiner is specifically asked to provide: 1) whether the Veteran has had sprain, incomplete ligament tear, or repaired complete ligament tear related to his right knee disability; 2) whether the Veteran has had unrepaired or failed repair of complete ligament tear causing persistent instability related to the right knee disability; and 3) whether the Veteran requires prescription by a medical provider for either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation due to his right knee disability. (d) The examiner is also asked to provide: 1) whether the Veteran has a diagnosed right knee condition involving the patellofemoral complex with recurrent instability (with or without surgical repair); and 2) whether the Veteran requires a prescription from a medical provider for a brace, cane, or walker for the patellar instability. (e) The examiner should assess the impact of the Veteran's service connected right and left knee disabilities, on his activities of daily living, including his occupational functioning. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that she/ he cannot provide and opinion without resort to mere speculation is inadequate unless the examiner provides a rationale for that statement. 4. Ask the Veteran to clarify whether he still desires a hearing before the Board and, if so, one should be scheduled. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.