Citation Nr: 22016016 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 12-31 462A DATE: March 21, 2022 REMANDED Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis for the period of February 1, 2010 to June 12, 2018 is remanded. Entitlement to a rating in excess of 30 percent for left knee osteoarthritis from August 1, 2019 is remanded. Entitlement to a rating in excess of 10 right knee instability is remanded. Entitlement to a rating in excess of 10 left knee instability from February 1, 2010 to June 12, 2018 is remanded. REASONS FOR REMAND The Veteran served on active-duty Navy from February 1990 to January 2010. In March 2018 the Veteran testified at a hearing held before the undersigned Veterans Law Judge. Although the Veteran was scheduled for a second Board hearing, in June 2021 he indicated that he did not seek the opportunity to testify at another hearing. As such, the Board will proceed to adjudicate the appeal based on the current record. The Board notes that in a July 2018 rating decision granted the Veteran a temporary evaluation of 100 percent effective June12, 2018 based on surgical or other treatment necessitating convalescence for his right knee. An evaluation of 30 percent is assigned from August 1, 2019. As a 100 percent rating represents the maximum allowed, the Board will consider an increased rating for the time during the appeal, prior to the assignment of the 100 percent disability rating and after. In October 2018, the Board, in relevant part, granted a 10 percent rating for instability of the left knee due to arthritis and granted a 10 percent rating for instability of the right knee due to arthritis. Additionally, the Board remanded entitlement to a rating in excess of 10 percent for right knee osteoarthritis and left knee arthritis and entitlement to a rating in excess of 10 percent for right knee instability and left knee instability for further development, to include a VA examination. Increased Rating Claims for Knees The Veteran asserts that his osteoarthritis of the right knee, osteoarthritis of the left knee, right knee instability and left knee instability are more severe than contemplated by the current ratings assigned. As noted, the Veteran afforded a VA examination in October 2019 to determine the severity of his osteoarthritis of the right knee, osteoarthritis of the left knee, instability of the right knee and instability of the left knee, as well as a retrospective medical opinion as to the nature, extent and extent and severity of the Veteran's left knee and right knee disabilities. The records reflects that the Veteran receives regular VA treatment for his knees. In the July 2020 Supplemental Statement of the Case (SSOC), the RO indicated that it had considered VA outpatient treatment records record through June 29, 2020. The files, however, includes records of his VA outpatient treatment up to August 2019. Records of his treatment since that time are constructively before the Board. As such, remand is required to obtain the records of the Veteran's outstanding VA treatment. In light of the state of the record, the Board finds that the claims must be remanded to associate those records and to afford him a VA his right knee and left knee disabilities. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records for the period from August 2019 to the present. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his left knee and right knee symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Thereafter, schedule the Veteran for a VA examination to address the nature, extent and severity of his service-connected right knee and left knee disabilities. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. 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). In addition, the examiner should also provide a retrospective medical opinion as to the nature, extent and severity of the Veteran's left knee and right knee disabilities for the relevant period of the appeal, including whether and to what extent the Veteran experienced functional loss due to pain and/or any of the other symptoms noted above to include locking. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. (Continued on the next page) The examiner should consider the Veteran's testimony regarding the severity of his service-connected knee conditions and the Veteran's reports at the January 2010 examination, where the Veteran described daily knee pain that was severe, reported as an 8 out of 10 in severity, and occurs as often as twice a day, lasting up to 6 hours each time. He stated that he experienced swelling and stiffness of the knees. He maintained that he had flare-ups of the knees that was precipitated by exertion. It was noted that the Veteran had functional impairments described as pain with bending the knees and that he was presently using medication to ameliorate his symptoms. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.