Citation Nr: 22065663 Decision Date: 11/23/22 Archive Date: 11/23/22 DOCKET NO. 18-06 921 DATE: November 23, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent a right knee meniscus tear is remanded. Entitlement to an initial compensable rating for a right knee scar is remanded. REASONS FOR REMAND The Veteran had active service from December 2006 to December 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for right knee meniscus tear with a 10 percent rating and for right knee scar with a noncompensable rating. The Veteran timely appealed. In June 2019, the Board remanded these claims for additional development. Unfortunately, as explained below, the requested development remains pending and additional action is needed. Entitlement to an initial rating in excess of 10 percent a right knee meniscus tear is remanded. Entitlement to an initial compensable rating for a right knee scar is remanded. The Veteran must have another opportunity to report for a VA right knee examination. As indicated in the June 2019 Board remand, an updated right knee VA examination is critical to assigning appropriate ratings for these claims. The evidence concerning the examination scheduling is limited to a June 2019 Exam Scheduling Request and June 2019 Examination Scheduling Request Contention Cancellation, which only stated that the VA examination was cancelled because the Veteran was unavailable. There are no other records concerning the scheduling of an examination for these claims. In Kyhn v. Shinseki, 24 Vet. App. 228, 237 (2011), the Court indicated that the presumption of regularity applied to notice of VA examinations. However, that decision was vacated on other grounds in Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). On remand, the Court held that the Board is required to discuss the documents it relies on in making a finding that a veteran was notified of an examination at his correct address and to discuss whether this finding is based on the presumption of regularity. Kyhn v. Shinseki, 26 Vet. App. 371 (2016). Given the above, the Board finds that another attempt to reschedule the requested right knee disability examination is needed as instructed below. The Veteran is advised that this examination is critical to his case and he should make every effort to attend. If he fails to report without good cause, the claims will adjudication based upon the evidence of record. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: Afford the Veteran a VA examination to determine the current nature and severity of his service-connected right knee disability. Document correspondence about scheduling the examination. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's right knee disability. (B) The examiner should record the range of motion of the right knee observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his right knee, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner should also comment as to whether (and if so, to what extent, (i.e., slight, moderate, or severe)) the Veteran's right knee disability results in recurrent subluxation or lateral instability. The examiner should also indicate whether there is dislocated or removed semilunar cartilage and, if so, the nature of the symptoms associated with such meniscus impairment. (F) With regard to the separately rated right knee scar, the examiner should identify the nature and severity of such impairment. In this regard, the examiner is requested to indicate the number of scars present, their sizes, and whether such scars are unstable and/or painful. (G) The examiner also should comment upon the functional impairment resulting from the Veteran's right knee disability and scars. A rationale for any opinion proffered should be provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.