Citation Nr: 22012153 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-44 141 DATE: March 2, 2022 REMANDED Entitlement to a rating greater than 30 percent for right knee total arthoplasty (right knee disability) from June 1, 2017, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from April 1975 to January 1976 and from March 1976 to January 2004. He appealed a December 2014 rating decision by the Agency of Original Jurisdiction (AOJ). The appeal was remanded for additional development in December 2018 and June 2021. Unfortunately, another remand is required. 1. Right Knee There appear to be outstanding records. The Board's December 2018 remand directed the AOJ to request the Veteran identify any sources of treatment for his knee disability and obtain records from those providers. In October 2019, the Veteran authorized the release of relevant treatment records from Drs. C.L. and C.N., for the period from January 2012 to October 2019. The AOJ requested records from those providers later that month. In response, Dr. C.L. provided records from June 2013 to August 2013, and Dr. C.N. provided records from October 2018. However, the AOJ did not inform the Veteran that limited records had been obtained or that he was ultimately responsible for providing any outstanding records, in accordance with 38 C.F.R. § 3.159(e). Moreover, in February 2020, the Veteran submitted a record from Dr. C.L., which indicated the Veteran was due for follow-up care for his knee the following month. Given the lack of proper notice and the indication of relevant outstanding records, remand is necessary. The Veteran seeks a higher evaluation for his right knee disability, which is currently assigned a 30 percent rating. The June 2021 remand directed the AOJ to provide the Veteran a new knee examination, and to specifically opine whether the Veteran's right knee replacement manifested by chronic residuals consisting of severe painful motion or weakness. The Veteran attended a knee examination in October 2021. The examiner evaluated the Veteran in accordance with the remand instructions and determined that the Veteran's right knee disability manifested by intermediate degrees of residual weakness, pain, or limitation of motion. In a February 2022 brief, the Veteran's representative asserted that the October 2021 examination was inadequate for rating purposes and challenged the credentials of the examiner. The representative did not identify a specific reason that the examination report was inadequate, but suggested the inadequacy resulted from his belief that the examiner lacked a particular expertise in evaluating orthopedic disorders. The Board observes that the examiner's credentials were noted to be "D.O.," which indicates he is a Doctor of Osteopathic Medicine. Nevertheless, once a veteran raises the issue of a VA examiner's competency, the Veteran must have the ability to secure the curriculum vitae and other information about qualifications of a medical examiner from VA. See Francway v. Wilkie, 940 F.3d 1304, 1308 (2019). Thus, a remand is required to provide the Veteran with the VA examiner's curriculum vitae pursuant to the duty to assist. 2. TDIU The Veteran seeks entitlement to TDIU. In May 2018 the Veteran submitted a VA Form 21-8940, documenting his work history as of that time. The record indicates the Veteran retired sometime between May 2019 and February 2020 due to nonservice-connected shoulder conditions. See May 2020 psychiatric examination report at 4. As the circumstances of the Veteran's work history from May 2018 to present are unclear, remand is necessary to obtain an updated history from the Veteran. The matters are REMANDED for the following actions: 1. Provide the Veteran information necessary to assess the competency of the October 2021 examiner. The information provided should then be associated with the Veteran's claims file. 2. Obtain and associate with the record outstanding VA treatment records. 3. Obtain any updated private treatment records that have not already been obtained, to include from Dr. C.L. and Dr. C.N., and associate the same with the claims file. Clearly document all efforts to obtain private treatment records, to include from Dr. C.L. and Dr. C.N. If any authorized records are unable to be obtained, to include for the period from 2012 to 2019, notify the Veteran of this fact, in accordance with 38 C.F.R. § 3.159(e). 4. Obtain a complete post-service employment and education history of the Veteran. The employment history should indicate the type of position, whether any position held was full time or part time (including hours per week worked if part time) and the wages earned. Any employment accommodations should be described in detail. 5. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.