Citation Nr: 22013328 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-12 701 DATE: March 9, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent for left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1979 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection for a left knee disability and assigned a 10 percent rating. A Board hearing was held in November 2021. A transcript is of record. Motion to Withdraw Representation The Veteran's representative filed a motion to withdraw representation in October 2021. As to motions to withdraw representation, the regulations provide that 38 C.F.R. § 14.631(c) applies unless § 20.6 governs the withdrawal. Section 20.6 applies here because the attorney had previously agreed to act as representative in an appeal and an appeal to the Board has been certified. See 38 C.F.R. § 20.6(a)(1), (2). A representative may not withdraw representation without good cause shown on motion, accompanied by a "signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the Veteran, setting forth the address to which a copy was mailed." See 38 C.F.R. § 20.6(a)(2). Good cause for such purposes includes the extended illness or incapacitation of the representative, failure of the appellant to cooperate with proper preparation and presentation of the appeal, or other factors which make the continuation of representation impossible, impractical, or unethical. Id. However, such motions should not contain information which would violate privileged communications or which would otherwise be unethical to reveal. Id. Upon the Board's receipt of the motion, the Veteran may file a response within 30 days, which must be accompanied by a "signed statement certifying that a copy of the response was sent by first-class mail, postage prepaid, to the representative, setting forth the address to which a copy was mailed." Id. In its motion, the representative moved for withdrawal at the Veteran's request. See September 2021 Motion to Withdraw. Thus, the Board finds that the representative has attested to good cause for withdrawal of representation. Included with the motion was a signed certificate of service attesting to service upon Veteran by first-class mail, postage prepaid, to the Veteran's address on October 20, 2021. Id. Though, a return receipt showing that the Veteran received a copy of the motion is not of record, the requirement for the same is not procedurally necessary under the regulations. Thus, providing the broadest interpretation, the Veteran had until 30 days after October 20, 2021, to respond to the motion. During his hearing, the Veteran acknowledged he was no longer represented and wished to proceed pro se. See Board Hearing Tr. at 2. As 30 days have elapsed and no response has been filed, the Board will proceed with adjudication of the motion to withdraw representation. The Board finds that the representative has met all procedural requirements necessary to request withdrawal of representation as required in § 20.6. Moreover, the Veteran has not elected to respond to the representative's motion within 30 days of receipt. As the Veteran has not appointed new representation, the Board will proceed with the Veteran pro se. Turning to the issue before the Board, the Board finds that remand is necessary for a new VA examination. The Veteran has had flare-ups of his left knee that cause increased functional loss throughout the appellate period. See Board Hearing Tr. at 8-9, October 2020 VA treatment records, November 2010 private medical records. While he was afforded two VA examinations, neither have discussed his flare-ups or resulting impairment, to include range of motion loss. Id.; see also November 2015 and November 2018 VA examination reports. Thus, remand is required for an examiner to opine as to the affect of the Veteran's flare-ups on his functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 35 (2019). Moreover, neither examination discussed the Veteran's meniscal tear at all. See November 2016 private medical records. The Board also notes that the Veteran had a total knee replacement in July 2021 that, in turn, caused a scar on his left knee. The date of his surgery and current severity of his disability must be determined on remand. See Board Hearing Tr. at 2. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his left knee disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, schedule the Veteran for appropriate examinations to determine the current nature and severity of his left knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. The examiner should also ask the Veteran to describe the flare-ups he experienced prior to his July 2021 surgery. After a review of the medical records, to include private medical records and VA treatment records, the examiner should provide an additional opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up prior to July 2021. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After the above has been completed to the extent possible, 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 A. Strickland 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.