Citation Nr: 21041860 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-39 759 DATE: July 10, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left knee osteoarthritis with chondrocalcinosis is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, denied a rating in excess of 10 percent for left knee osteoarthritis with chondrocalcinosis (previously rated as residuals of arthrotomy, left knee). In February 2019, the Veteran submitted VA Form 21-4138 Ramp Opt-In Election Form and selected three different review options under the modernized appeals system. In February 2019, the RO advised the Veteran in writing that it could not process his request as a result of him selecting multiple review options and asked him to submit a new VA Form 21-4138 Ramp Opt-In Election. The Veteran did not do so and as a result, the appeal remains in the legacy system. In an April 2020 decision, the Board denied a rating in excess of 10 percent for residuals of a left knee arthrotomy. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Veteran's representative and the VA General Counsel filed a joint motion for remand (JMR) as the parties agreed that the Board erred by failing to ensure VA's duty to assist was satisfied when it relied on inadequate VA medical examination evidence. The parties agreed that the January 2020 VA examination is inadequate. More specifically, the parties agreed that the January 2020 VA examiner noted the Veteran does not wear a supporting knee sleeve or unloading brace. However, the record shows the Veteran was noted to wear a knee brace in both October 2015 and May 2017 VA examinations. The evidence also shows the Veteran wore a custom varus unloading brace as recently as December 2019, just one month before the January 2020 VA examination. Thus, the January 2020 VA examination was based on an inaccurate factual premise, warranting a new examination. The Court granted the JMPR in February 2021 and remanded the matter for action consistent with the terns of the JMR. The matter has now been returned to the Board for further adjudication. 1. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis with chondrocalcinosis is remanded. The Board finds that additional action is required prior to appellate review of the Veteran's claim for entitlement to a rating in excess of 10 percent for left knee osteoarthritis with chondrocalcinosis. The claim is thus remanded for further evidentiary development. Specifically, and consistent with the JMR, the AOJ must obtain a new VA examination for the Veteran's left knee osteoarthritis with chondrocalcinosis. In addition to providing all relevant information regarding the current nature and severity of the Veteran's left knee disability, the examiner must specifically address the Veteran's use of a supporting knee sleeve or unloading brace and the impact of such use on his service-connected left knee osteoarthritis with chondrocalcinosis. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current severity of his service-connected left knee osteoarthritis with chondrocalcinosis. Any indicated studies, including x-ray studies, should be performed. The entire claims file, to include a complete copy of this remand, must be made available to, and reviewed by, the designated examiner. The examiner must evaluate the range of motion for pain in both active motion and passive motion, as well as in weight-bearing and nonweight-bearing scenarios, for both knees. The examiner must specifically identify the points, if any, at which pain begins for each joint examined. If any such test is not conducted, the examiner must explain why such test was not necessary. The examiner must also note whether there are further functional limitations of the right and left knee, due to pain, weakness, fatigue, or incoordination. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain, or flare ups in any of the examined joints. The examiner must provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran's left knee disability under the applicable rating criteria. The examiner must also provide commentary on the functional effects of the Veteran's left knee disability. Finally, the examiner must specifically address the Veteran's use of a supporting knee sleeve or unloading brace, as documented in the October 2015 and May 2017 VA examinations and in the Veteran's treatment records and lay reports, and the impact of such use on his service-connected left knee osteoarthritis with chondrocalcinosis. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jiggetts 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.