Citation Nr: 21040206 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 12-14 257 DATE: July 2, 2021 ORDER The appeal as to the claim of entitlement to service connection for bilateral eye conjunctivitis is dismissed. REMANDED The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected left knee limitation of extension prior to June 26, 2018, in excess of 30 percent from June 26, 2018, to August 13, 2018, and in excess of 20 percent from August 13, 2018, is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected right knee limitation of extension prior to June 26, 2018, in excess of 20 percent from June 26, 2018, to August 13, 2018, and in excess of 10 percent from August 13, 2018, is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 20 percent for service-connected left knee instability prior to August 13, 2018, and in excess of 10 percent from August 13, 2018, is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 20 percent for service-connected right knee instability prior to August 13, 2018, and in excess of 10 percent from August 13, 2018, is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 20 percent for service-connected left knee limitation of flexion prior to August 13, 2018, and for a compensable evaluation from August 13, 2018, is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 20 percent for service-connected right knee limitation of flexion prior to August 13, 2018, and for a compensable evaluation from August 13, 2018, is remanded. FINDING OF FACT While in remand status, a December 2020 rating decision granted entitlement to service connection for bilateral eye conjunctivitis. CONCLUSION OF LAW As the benefit sought on appeal with respect to the matter of service connection for bilateral eye conjunctivitis has been granted, there remains no case or controversy as to the issue of entitlement to service connection for bilateral eye conjunctivitis. 38 U.S.C. §§ 1110, 1131, 7105(d)(5) (2012); 38 C.F.R. § 20.101 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from February 1988 to June 2010. Her service was under honorable conditions. Amongst other commendations, the Veteran is the recipient of the Afghanistan Campaign Medal. These matters are on appeal from May 2011, February 2017, and July 2019 rating decisions. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to service connection for bilateral eye conjunctivitis. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, a December 2020 rating decision granted the Veteran's claim of entitlement to service connection for bilateral eye conjunctivitis. This action resolved the claim for service connection. As a result, no case or controversy regarding the matter of service connection for bilateral eye conjunctivitis remains, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105 (d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to the matter, and the matter is dismissed. REASONS FOR REMAND VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. The Board notes that the Veteran was last afforded a VA examination to assess the severity of her service-connected right and left knee disorders in June 2019, approximately two years ago. Subsequently, in a May 2021 brief, the Veteran, through her representative asserted that her bilateral knee disabilities worsened, suggesting that her symptoms may have increased in severity since the aforementioned VA examination. Regarding her right and left knee disorders, the Veteran stated symptoms of pain, swelling, and instability. She also asserted that she experienced flare-ups Because the most recent June 2019 VA examination report appears to potentially not be representative of the current severity of the Veteran's right and left knee disorders, the claim must be remanded for a more contemporaneous VA examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). In addition, as of August 2018, the record reflects that the Veteran gets treatment at the VA Medical Center (VAMC) in Hampton, Virginia. Moreover, the Veteran has also asserted that she received treatment at the Hampton VAMC. Accordingly, the AOJ must obtain complete VA outpatient treatment records from the Hampton VAMC and associate them with the record. The AOJ is notified that these records may inform as to the current severity of the Veteran's service-connected right and left knee disabilities; specifically, during the period of June 26, 2018 to August 13, 2018, as the Veteran's ratings decrease significantly during that time. 38 C.F.R. § 3.159. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include complete VA outpatient treatment records from the Hampton, Virginia, VAMC. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the appellant so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current severity of her service-connected right and left knee disabilities. The record should be made available to and reviewed by the examiner. All necessary tests and studies should be performed. The examiner must provide all information required for rating purposes, to specifically include the results of range of motion testing for pain on both active and passive motion and on weight-bearing and nonweight-bearing. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. Furthermore, if any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. (Continued on the next page) 3. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on her claim. 4. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, she and her representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.