Citation Nr: 21041917 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-51 523 DATE: July 10, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to September 6, 2016, for post operative right knee anterior cruciate ligamental tear residuals with partial medial meniscectomy residuals is remanded. Entitlement to a rating in excess of 10 percent prior to September 6, 2016, for right knee degenerative joint disease with a Baker's cyst is remanded. Entitlement to a rating in excess of 30 percent on and after November 1, 2017, for right total knee replacement residuals including degenerative joint disease and a Baker's cyst is remanded. Entitlement to a rating in excess of 10 percent prior to January 10, 2017, for left knee degenerative joint disease with a Baker's cyst is remanded. Entitlement to a rating in excess of 30 percent on and after March 1, 2018, for left total knee replacement residuals including degenerative joint disease and a Baker's cyst is remanded. REASONS FOR REMAND The Veteran had active service from September 1985 to January 1989. Entitlement to a rating in excess of 20 percent prior to September 6, 2016, for post operative right knee anterior cruciate ligamental tear residuals with partial medial meniscectomy residuals; a rating in excess of 10 percent prior to September 6, 2016, for right knee degenerative joint disease with a Baker's cyst; a rating in excess of 30 percent on and after November 1, 2017, for right total knee replacement residuals including degenerative joint disease and a Baker's cyst; a rating in excess of 10 percent prior to January 10, 2017, for left knee degenerative joint disease with a Baker's cyst; and a rating in excess of 30 percent on and after March 1, 2018, for left total knee replacement residuals including degenerative joint disease and a Baker's cyst is remanded. In its December 2018 Remand instructions, the Board of Veterans' Appeals (Board) directed that the Veteran be scheduled for a VA examination "to determine the current extent of his service-connected bilateral knee disabilities, status post total knee replacements, and to provide a retrospective medical opinion, to the extent feasible." The examiner was directed to "render, if possible to do so without resorting to mere speculation, a retrospective opinion that identifies active motion, passive motion, pain with weight-bearing and without weight-bearing (to the extent medically appropriate) at the time of the January 2016 VA examination report or any time between April 2014 and his knee replacement surgeries in September 2016 (right) and January 2017 (left)." The report of a January 2020 VA knee examination states that the examiner indicated that "it is not possible for me to address past exams issues such as 'functional impairment in terms of additional range of motion loss at the time of the January 2016 VA examination report or any time between April 2014 and his knee replacement surgeries in September 2016 (right) and January 2017 (left)' without resort to mere speculation." In a July 2020 addendum to the January 2020 VA examination report, the examiner clarified that "I did not do the exam on January 13, 2016, and so I was not present during that exam, and do not have insight or direct information about it" and "my exam done in January 22, 2020 is as was stated in that exam, and I have nothing further to add to that." The Board observes that the phrase "without resort to speculation" should indicate the limitations of knowledge in the medical community at large and not those of a particular examiner." Jones v. Shinseki, 23 Vet. App. 382 (2010). The opinion in the January 2020 VA knee examination report and the July 2020 addendum thereto express the examiner's limitations. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtain an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In light of the cited deficiency in the January 2020 examination report and the July 2020 addendum thereto, the Board finds that further VA knee evaluation is needed. Clinical documentation dated after July 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated service connected right knee and left knee disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records not of record, to include those pertaining to treatment after July 2020. 3. Schedule the Veteran for a VA knee examination conducted by a physician, other than who conducted the January 2020 VA examination, to assist in determining the nature and severity of the service connected right knee and left knee disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of both knees. The examiner should specifically indicate the degree at which the Veteran experiences pain on motion of the knees. (b) State whether there is any additional loss of knee function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (c) State whether there is any recurrent subluxation or lateral instability of the knees, and if so, opine as to the severity. (Continued on the next page) (d) Opine as to active range of motion, passive range of motion, pain with weight bearing and nonweight bearing at the time of the January 2016 VA examination report or any time between April 2014 and the September 2016 right knee replacement and January 2017 left knee replacement. (e) Opine as to the impact of the right knee and left knee disabilities on the Veteran's vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the effects of the knee disabilities. If the Veteran is felt capable of work despite the service connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ferguson, 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.