Citation Nr: 21042724 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-35 511 DATE: July 13, 2021 REMANDED Entitlement to a higher initial disability rating in excess of 10 percent for right knee osteochondromalacia, status post arthroscopic surgeries, is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from December 1990 to September 1991, and from January 2003 to September 2003. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The instant matter was previously before the Board in July 2020, where the issue on appeal was remanded for a new VA knee examination. Review of the record reflects that an adequate VA knee examination was performed in September 2020. Unfortunately, for the reasons discussed below, the issue on appeal must once again be remanded for additional development. As such, no further discussion as to remand compliance is necessary at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a June 2020 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. A Higher Initial Disability Rating for Right Knee Disability is Remanded. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. As discussed in the introduction, following the Board's July 2020 Remand, the Veteran received a new adequate VA knee examination in September 2020; however, in a May 2021 lay statement received by VA, the Veteran indicated that the flare-ups of pain in the right knee had been worsening over the past year. Further, the Veteran also submitted evidence that he had been approved for Family and Medical Leave Act (FMLA) leave to treat the worsening flare-ups of pain in the right knee in June 2021. Due to the Veteran's evidentiary submissions suggesting a worsening of the service connected right knee disability, VA scheduled a new VA knee examination in June 2021. Unfortunately, a review of the June 2021 VA examination report indicates that the examination was not adequately performed. Specifically, at the time of the June 2021 VA knee examination, the VA examiner found that the Veteran had full range of motion in the right knee without evidence of pain. Further, while the VA examiner did note that the Veteran had pain in the right knee during a flare-up, the VA examiner assessed that the Veteran would have no loss of range of motion during a painful flare-up. Such findings conflict with the other evidence of record, to include the findings at the time of the September 2020 VA knee examination, and with the fundamental rating concept that a painful joint is limited in motion and function. See 38 C.F.R. §§ 4.40, 4.45, 4.59. As the evidence of record suggests a worsening of the right knee symptoms or functioning since the adequate September 2020 VA knee examination, and as the June 2021 VA knee examination was not adequate for VA rating purposes, the Board finds remand to obtain a new VA right knee examination to be necessary. The matter is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the right knee. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the right knee, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's right knee, not already of record, for the period from June 2021. 3. Schedule a new VA right knee examination. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should report the extent of all right knee disability symptoms and impairment in accordance with VA rating criteria, to include providing an opinion as to additional range of motion lost during a painful flare up if the examination is not being performed during such a flare-up of right knee pain. 4. Then, readjudicate the issue of a higher initial disability rating in excess of 10 percent for right knee osteochondromalacia, status post arthroscopic surgeries. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.