Citation Nr: 21031070 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-44 442 DATE: May 20, 2021 REMANDED Entitlement to an increased rating for right knee arthritis, currently rated 10 percent under Diagnostic Code 5003, from February 12, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2001 to April 2007. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board issued a decision that granted a 20 percent rating under Diagnostic Code 5258 for dislocated semilunar cartilage of the right knee, a separate 10 percent rating under Diagnostic Code 5257 for lateral instability of the right knee, and a separate 10 percent rating under Diagnostic Code 5003 for right knee arthritis effective February 12, 2016. The Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In April September 2019, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the part of the Board's November 2018 decision which denied a compensable rating for right knee arthritis under Diagnostic Code 5003 prior to February 12, 2016 and a rating higher than 10 percent thereafter. In a December 2019 decision, the Board granted entitlement to a 10 percent rating, but no higher, under Diagnostic Code 5003 for right knee arthritis, prior to February 12, 2016. The Board remanded the claim for a rating in excess of 10 percent under Diagnostic Code 5003 for right knee arthritis, from February 12, 2016 for further evidentiary development. 1. Entitlement to an increased rating for right knee arthritis, currently rated 10 percent under Diagnostic Code 5003, from February 12, 2016 In December 2019, the Board remanded the right knee arthritis claim to the RO to afford the Veteran a new VA examination, as the parties to the JMPR found the February 2016 VA examination was not adequate. On February 14, 2020, the RO requested an examination for right knee arthritis. An exam details record dated March 18, 2020 indicates the Veteran was called and scheduled for a February 16, 2020 and cancelled the February 24, 2020 appointment. The record notes the Veteran rescheduled exam for February 26, 2020 and failed to report. In an August 2020 Supplemental Statement of the Case, the RO denied entitlement to a rating in excess of 10 percent under Diagnostic Code 5003 for right knee arthritis, from February 12, 2016. The RO noted denial was based on the evidence of record and refusal of scheduled VA examination. The evidence of record does not indicate the RO issued any written communications regarding the scheduling of VA examinations. Thus, it is not clear as to whether the Veteran was notified of the scheduled VA examination and the consequences for his failure to attend. In Kyhn v. Shinseki, 24 Vet. App. 228, 237 (2011), the Court indicated that the presumption of regularity applied to notice of VA examinations. However, that decision was vacated on other grounds in Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). On remand, the Court held that the Board is required to discuss the documents it relies on in making a finding that a veteran was notified of an examination at his correct address and to discuss whether this finding is based on the presumption of regularity. Kyhn v. Shinseki, 26 Vet. App. 371 (2016). As it appears that the Veteran was not properly notified of his scheduled VA examination, and notification cannot be presumed, the Board will remand the claim in order to schedule the Veteran for a VA examination for his right knee arthritis claim in a manner that would give the Veteran the best opportunity to attend the examination based on the greatest amount of knowledge regarding the circumstances of the scheduling of the examination. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to include via telehealth if warranted, to determine the severity of his service-connected right knee arthritis. The claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. The examiner must address each of the following inquiries: a) The examiner should describe all symptoms associated with the Veteran's service-connected right knee disability. The examiner should also ask the Veteran to provide a history as to the nature and severity of his service-connected right knee disability since February 12, 2016. b) For both knees, the examiner should test for pain on motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If pain is noted on range-of motion testing. c) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use over time. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use over time. d) Where the examination does not occur during a flareup, based upon the evidence of record, and the information elicited on examination, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up limitation of flexion is limited to 30 degrees (the measurement required for the next higher rating), and/or extension is limited to 15 degrees. If limitation of flexion is limited to less than 30 degrees, or limitation of extension is limited to more than 15 degrees, estimate the additional degree of motion loss. e) Additionally, the extent it is possible, based on the Veteran's reported history and the contemporaneous medical evidence, the examiner should provide an estimate of the functional loss, including loss of range of motion, due to flare-ups or following repeated use over time since February 12, 2016. (Continued on the next page) If the examiner cannot provide the above-requested estimates based on the information provided by the Veteran and the contemporaneous medical evidence available, the examiner should state so clearly and provide a detailed explanation as to whether such an estimate would be unknowable to the medical community to any degree of medical certainty, in spite of such evidence. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.