Citation Nr: 22015015 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 11-29 905 DATE: March 16, 2022 REMANDED Entitlement to a rating in excess of 10 percent for service-connected degenerative joint disease of the left knee, status-post arthroscopic surgery, with painful motion is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1989 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in September 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of this transcript is of record. During that hearing, the Veteran waived initial RO consideration of all evidence received after the August 2020 supplemental statement of the case (SSOC). Previously in March 2013 and October 2017, the Veteran testified (hearing transcripts of record) before two separate Veterans Law Judges who currently no longer work for the Board. As both Veterans Law Judges have retired, there is no need for a panel decision. The Board remanded the issues in December 2013, July 2018, and April 2020 for further development. Additionally, this appeal is under the legacy system. There are other issues that remain on appeal under the Appeals Modernization Act (AMA), which will be addressed by the Board in separate decisions. Entitlement to a rating in excess of 10 percent for service-connected degenerative joint disease of the left knee, status-post arthroscopic surgery, with painful motion is remanded. Unfortunately, another remand is warranted to accurately determine the nature and severity of the Veteran's service-connected left knee disability. The Veteran was recently afforded VA examinations in April 2019 and May 2019 for his knees. The Board finds that the VA examiners did not appropriately consider the Veteran's lay statements regarding the instability of his knees. Both examiners concluded that the Veteran did not have any left knee instability. In an April 2020 statement, the Veteran's attorney implied that the Veteran's April 2019 VA examination did not properly account for the Veteran's left knee instability. The attorney asserted that the Veteran provided evidence of instability of the left knee, but the VA examiner determined that no evidence of instability existed. The Veteran's attorney insisted that VA provide the curriculum vitae and all known qualifications of Dr. G.P.D. who conducted the April 2019 VA examination in accordance with Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). Accordingly, a remand is warranted to provide to the Veteran and his attorney for review the April 2019 VA examiner's curriculum vitae and any other additional information regarding his qualifications. Additionally, the RO should obtain a new VA examination to determine the severity of the Veteran's left knee instability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate with the claims file. 2. Obtain a copy of the curriculum vitae of the April 2019 VA examiner, Dr. G.D.P., and any other available information regarding the examiner's qualifications and Provide the Veteran and his attorney with a copy. Associate such information with the claims file. If the requested information is not obtainable, the Veteran and his attorney should be notified, and the reasons for such should be documented in the record. 3. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected left knee disability. The VA examination should include all tests and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the disability. The claims file must be made available to the examiner for review. (a.) The examiner is requested to test the range of motion of the left knee in active motion, passive motion, weight-bearing, and non-weight bearing (if applicable). If the examiner is unable to conduct the required testing, or concludes such testing is not necessary, he or she should clearly explain why that is so. (b.) Regarding repetitive use over a period of time, if the Veteran is not being examined after repetitive use over a period of time, the examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from repetitive use over a period of time. The examiner must express an opinion as to whether or not the Veteran's functional ability is significantly limited after repetitive use over a period of time, and that determination should, if feasible, be portrayed in terms of the degree of additional loss of range of motion. (c.) Regarding flare-ups, if the examination does not take place during a flare-up, the examiner should obtain from the Veteran's information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner must express an opinion as to whether or not the Veteran's functional ability is significantly limited during flare-ups, and that determination should, if feasible, be portrayed in terms of the degree of additional loss of range-of-motion during flare-ups. (d.) The VA examiner should consider the Veteran's lay statements about his left knee instability. The VA examiner should discuss the severity of the Veteran's left knee instability (whether it is slight, moderate, or severe) and whether the Veteran was prescribed an assistive device (walker, cane, etc.) and/or brace for ambulation. The VA examiner should consider the new changes made to 38 C.F.R. § 4.71(a), Diagnostic Code 5257. (Continued on next page) All opinions and conclusions must be explained. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.