Citation Nr: 22017185 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-55 932 DATE: March 24, 2022 REMANDED Entitlement to a compensable rating prior to August 9, 2016, and a rating in excess of 10 percent thereafter for left knee tendonitis/tendonitis post reconstruction of the left knee due to dislocation based on objective evidence of tenosynovitis along with limitation of motion of the joint (left knee disability) is remanded. Entitlement to an initial compensable rating for surgical scar of the left knee disability (scar disability) is remanded. REASONS FOR REMAND The appellant served on active duty from April 1968 to April 1988 in the U.S. Army and is a recipient of a Bronze star. This matter is on appeal to the Board of Veterans' Appeals (Board) from an November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted an increased rating for left knee disability at 10 percent since August 9, 2016. The RO also granted service connection for surgical scar of the left knee as secondary to the service-connected left knee disability effective August 9, 2016. 1. Increased rating for left knee disability. The appellant seeks a higher rating for his service-connected left knee disability. He asserts his left knee hurts him most days and limits the activities he can perform due to pain, weakness and limited range of motion. He was involved in a wreck while on active duty and has suffered ever since. The Veteran contends it has worsened over the years and that he had surgery on the knee in 1979. He also reports that the left knee disability has started to affect his left foot. Due to this, the Veteran visited a podiatrist because of the secondary affect caused by his left knee and the physician gave him pads to wear in his shoe to assist with his foot condition. The Veteran contends that the additional left foot condition is indicative of his left knee condition worsening, in addition to affecting other areas of his body. See Notice of Disagreement (NOD) (December 2016) and Form 9 (October 2017). Remand is necessary for VA to fulfill its duty to assist. First, the evidence of record indicates that there may be outstanding relevant VA medical treatment records (VA MTRs). In the October 2017 substantive appeal, the appellant reported he continued to receive treatment from a podiatrist for the disability on appeal; however, it does not appear that those records have been associated with the claims file. Further, the record strongly suggests the appellant's sole source of treatment for his knee has been through a VA medical facility. However, the last time VA MTRs were associated with the claims file was March 2019. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. Next, the appellant should also be afforded an opportunity to identify any relevant outstanding private treatment records. On remand, VA should obtain authorization to obtain any private medicate treatment records related to the left knee disability and request said records on the appellant's behalf. Lastly, remand is warranted to provide the appellant an updated VA examination to assess the current severity of the left knee disability. While the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Here, the appellant was last afforded a VA examination in November 2016. Subsequently, November 2016 VA records show the appellant continued to struggle with pain, albeit he received some relief from physical therapy. See CAPRI (October 2017). Nonetheless, the appellant is competent to report increased pain. Given the competent evidence of worsened pain symptoms since the last VA examination conducted six years ago, and the missing VA medical treatment records since March 2019, the appellant should be provided an opportunity to report for a new VA examination to ascertain the current severity and manifestations of his service-connected left knee disability. Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Snuffer, 10 Vet. App. at 400. Therefore, remand is necessary to discern the current level of severity of the impairment. 2. Increased rating for scar of the left knee The appellant also seeks a higher rating for his service-connected scar disability. The only specific contentions he made regarding the scar is that he had surgery on the knee in 1979 and that his general left knee pain has worsened. See Notice of Disagreement (NOD) (December 2016). Nevertheless, remanded is appropriate to afford the appellant a VA examination to specifically assess the severity of his scar disability. In this case, the appellant was never afforded a VA examination in connection with his scar disability. His current non-compensable rating appears to be based on the November 2016 VA examination that assessed his knee, conducted nearly six years. Moreover, as discussed above, the Veteran generally asserts his left knee disability has worsened. Therefore, remand for an examination to evaluate the current severity of his symptoms is therefore appropriate. The matters are REMANDED for the following action: 1. Obtain the appellant's VA treatment records for the period from March 2019 to the Present. 2. Ask the appellant to complete a VA Form 21-4142 for treatment from any private providers. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the appellant for a VA examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant's disability under the rating criteria. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the examiner. In so doing, the examiner must test the appellant's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the appellant's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the appellant for an examination by an appropriate clinician to determine the current severity of his service-connected scar disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant's disability under the rating criteria. J. LEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pendleton, N. 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.