Citation Nr: 21031991 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-63 458 DATE: May 25, 2021 REMANDED Entitlement to a rating higher than 10 percent for osteoarthritis of the right knee, prior to June 25, 2020, and to a rating higher than 30 percent, thereafter, is remanded. Entitlement to a rating higher than 10 percent for osteoarthritis of the left knee, prior to June 25, 2020, and to a rating higher than 30 percent, thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 1979 to July 1999. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in February 2020 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In April 2020, the Board remanded these claims for additional development. All issues are remanded. The Board notes that these issues were remanded in April 2020 with instructions to obtain private treatment records, afford the Veteran a new VA examination that complied with Correia v. McDonald, and to properly develop the Veteran's TDIU claim. Examination The Veteran was afforded a VA examination in June 2020. Although the Veteran was noted to have pain on flexion and extension, bilaterally, the degree at which pain occurred was not noted in the examination report. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, on remand, the Veteran should be afforded an examination for his bilateral knees that includes the degree at which pain occurs during range of motion tests. These findings are necessary to adequately rate the Veteran's disability according to DeLuca. Id. Additionally, the Board notes that 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). On remand, the examiner should ensure that all signs and symptoms necessary to rate the Veteran's disabilities under the revised rating criteria are included in the examination report. Outstanding Records/TDIU Application Next, in an August 2020 letter, the RO requested that the Veteran complete and return a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to support his claim for entitlement to a TDIU, and DD Form 2870, Authorization for Disclosure of Medical or Dental Information, to obtain medical records the Veteran identified during the February 2020 Board hearing. The Veteran failed to complete and return either of these forms; however, in March 2021, the Veteran submitted a statement clarifying which location he received treatment, and indicated that although he was submitting some copies from the records, there are "much more in my records that can be review[ed] as well." The Board notes that the claims file indicates that the Veteran may not have received some correspondence. Although there is no returned mail in the file, as noted, the Veteran failed to respond to the request for completion of the forms, and a February 2021 letter from the Board, sent to a different address than previously used by the RO, notes that the Veteran did not receive a copy of the April 2020 Board decision. On remand, the Veteran's address should be verified, and he should be provided an additional opportunity to complete and submit VA Form 21-8940 to support his TDIU claim, as well as DD Form 2870, to obtain the medical records he identified. The Veteran is also reminded that the "duty to assist is not always a one-way street," and that he has an obligation to actively participate in the development of his claims. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Verify the Veteran's correct address and update any necessary VA databases to reflect the proper updated address. 2. Ask the Veteran to complete a DD Form 2870, or appropriate authorization form, for any outstanding treatment records, to include records from Naval Medical Center (Balboa Hospital) San Diego, Chula Vista. Make two requests for the authorized records from the facility, unless it is clear after the first request that a second request would be futile. If obtained, associate the treatment records with the claims file. Notify the Veteran that he may also submit these treatment records himself. 3. Ask the Veteran to complete VA Form 21-8940 for his TDIU claim. 4. Afford the Veteran a VA examination for his bilateral knee disability. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the bilateral knees and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) pursuant to DeLuca. *Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH knees on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the knees cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. *In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.