Citation Nr: 22067006 Decision Date: 12/01/22 Archive Date: 12/01/22 DOCKET NO. 16-59 242 DATE: December 1, 2022 REMANDED Entitlement to an initial rating for service-connected left knee disability in excess of 10 percent prior to December 6, 2016, and in excess of 40 percent beginning December 6, 2016, through August 18, 2019, is remanded. Entitlement to a rating in excess of 30 percent for service-connected left knee prosthetic replacement residuals beginning October 1, 2020, forward is remanded. INTRODUCTION The Veteran served honorably on active duty in the United States Army during Peacetime, from July 1981 to June 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. When these matters came before the Board previously in July 2021, the Veteran was granted a 40 percent disability rating for left knee ankylosis from December 6, 2016, to August 18, 2019, and a temporary 100 percent rating for left knee prosthetic replacement from August 19, 2019, to December 19, 2019. However, the Board denied an initial rating in excess of 10 percent for left knee osteoarthritis prior to December 6, 2016, as well as since December 20, 2019. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) which, pursuant to a Joint Motion for Partial Remand (JMPR), issued an August 2022 Order remanding the matters for action consistent with the terms of the JMPR. As will be explained below, the Board has recharacterized the issues on appeal to reflect the evidence and the Veteran's arguments more accurately. REASONS FOR REMAND Entitlement to an initial rating for service-connected left knee disability in excess of 10 percent prior to December 6, 2016, and in excess of 40 percent beginning December 6, 2016, through August 18, 2019, is remanded. Entitlement to a rating in excess of 30 percent for service-connected left knee prosthetic replacement residuals beginning October 1, 2020, forward is remanded. As an initial matter, the October 2015 Rating Decision on appeal granted the Veteran service connection for left knee osteoarthritis effective March 27, 2014, and assigned a 10 percent initial disability rating under Diagnostic Code (DC) 5260 due to limitation of flexion. Thereafter, the Board's July 2021 decision denied an initial rating in excess of 10 percent, but granted an increased 40 percent rating effective December 6, 2016, through August 18, 2019, under DC 5256 due to ankylosis. As the Veteran underwent a left knee prosthetic replacement on August 19, 2019, the Board granted a temporary 100 percent rating for four months under DC 5055 (pursuant to the revised rating criteria effective February 7, 2021) from August 19, 2019, through December 19, 2019, but denied a rating higher than 10 percent since December 20, 2019, under DC 5260. However, the September 2021 Rating Decision implementing the Board's decision properly granted the 100 percent temporary rating for one year (pursuant to the pre-revised rating criteria) effective August 19, 2019, through September 30, 2020, and assigned a 30 percent rating under DC 5055 from October 1, 2020, forward. Therefore, the Board has recharacterized the issues on appeal to accurately reflect the evidence and contentions. Pursuant to the JMPR granted by the Court in August 2022, the Board's July 2021 decision erred by failing to ensure VA satisfied its duty to assist when it failed to make reasonable efforts to obtain the Veteran's VA treatment records (VATRs) dated after April 22, 2021, and despite evidence reflecting subsequent appointments. As a result, the JMPR directs the Board to remand these matters to ensure VA makes reasonable efforts to obtain any outstanding VATRs and associate them with the Veteran's claims file. Next, because the Board's April 2020 remand decision determined a October 2015 VA examination report and December 2016 Disability Benefits Questionnaire (DBQ) completed by a VA medical provider were inadequate for rating purposes, the Veteran was to be afforded another VA examination. According to a VA memorandum received July 2020, the Veteran declined to appear for an examination, and the Board observes he did not respond to VA's August 2020 correspondence requesting confirmation. However, as these matters are being remanded for additional development, the Board finds the record would benefit from a retrospective VA medical opinion addressing the nature and severity of the Veteran's left knee disability for the entire period on appeal prior to August 19, 2019. The Veteran is advised, however, that VA's duty to assist is not always a "one-way street" and a Veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Finally, the Board observes the Veteran has not been afforded a VA examination assessing the nature and severity of his left knee disability since October 2015. Therefore, the Board finds remand is also required to afford him a contemporaneous VA examination assessing the current nature and severity of his left knee prosthetic replacement residuals from October 1, 2020, forward. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, these matters are REMANDED for the following actions: 1. Undertake all development necessary to obtain and associate with the claims file the Veteran's updated VA treatment records since April 22, 2021. 2. Schedule the Veteran for an in-person VA orthopedic examination with an examiner possessing the necessary expertise to fully assess and render a RETROSPECTIVE opinion regarding the nature and severity of ALL service-connected left knee disabilities FOR THE ENTIRE PERIOD ON APPEAL PRIOR TO AUGUST 19, 2019, as well as SINCE OCTOBER 1, 2020. The examiner MUST obtain a full history from the Veteran as he is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology and functional limitations. All pertinent symptomology, including when initially manifesting and any progression over time, MUST be elicited from the Veteran and reported in detail. Any indicated studies MUST be performed. Based upon review of all pertinent evidence in the claims file (e.g., medical treatment and examination records, lay statements), the Veteran's self-reports during the examination, and the examination results, the examiner MUST offer a RETROSPECTIVE opinion FOR THE ENTIRE PERIOD ON APPEAL PRIOR TO AUGUST 19, 2019, as well as SINCE OCTOBER 1, 2020, providing a full description of the Veteran's service-connected left knee disabilities and all signs and symptoms necessary for evaluating his disabilities under the applicable rating criteria. For the periods on appeal, the examiner MUST report ROM in active and passive motion, weight-bearing and non-weight-bearing, after repeated use over time, during flare-ups, and due to any weakened movement, excess fatigability, or incoordination, as well as any ankylosis (or its functional equivalent). In so doing, the examiner MUST put forth best efforts in estimating any functional loss based upon information procured from all relevant sources, including the Veteran's self-reports. If the examiner is unable to conduct the required testing or provide these ROM measurements, the reason(s) MUST be clearly explained. For the periods on appeal, the examiner MUST report any recurrent subluxation, lateral instability, patellar instability, semi-lunar cartilage involvement, and/or tibia and fibula impairment and, if any, the severity of same. In offering the above opinions, the examiner MUST consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record, including: August 2008 VATRs reflecting surgical consult for left knee arthroscopy, partial medial meniscectomy; October 2015 VA examination report documenting reports of increased pain, stiffness, swelling, and frequent locking sensation; January 2016 VATRs noting complaints of swelling; December 2016 DBQ reflecting complaints of instability and functional loss due to chronic pain (e.g., "unable to bend my knee for whatever task I need to do or put weight on it for long because it hurts a lot"); and VATRs dated November 2017 indicating complaints of grinding, clicking, popping, and giving out, January 2018 noting complaints of grinding, popping, and clicking, and April 2018 documenting impaired balance and a fall due to left knee giving out. The examiner is advised the mere absence of evidence does not automatically equate to unfavorable evidence. The Veteran's self-reports as to such considerations as symptomology onset and progression over time MUST be considered and fully discussed. If it is not possible to provide the above-requested opinion(s) without resorting to mere speculation, the examiner MUST explain whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner (i.e., does not possess the necessary expertise or training). ALL opinions expressed MUST be fully-articulated, based upon an accurate medical history, and contain clear conclusions and references to supporting data (i.e., pertinent evidence of record and, as warranted, medical literature) with soundly reasoned medical explanations connecting the two. ** The RO MUST remind the Veteran that VA's duty to assist is not always a "one-way street" and a Veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood, 1 Vet. App. at 193. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.