Citation Nr: 22040150 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 20-12 228 DATE: July 13, 2022 REMANDED Entitlement to an increased rating in excess of 30 percent for left knee strain with osteoarthritis, patellofemoral pain syndrome and residuals of tibia and/or fibula fracture (left knee disability) is remanded. Entitlement to an initial rating in excess of 10 percent rating for left knee instability disability is remanded. Entitlement to an initial compensable disability rating for service-connected left knee scar disability is remanded. REASONS FOR REMAND The Veteran had active service from August 1966 to July 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal of a December 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an increased rating in excess of 30 percent for left knee strain with osteoarthritis, patellofemoral pain syndrome and residuals of tibia and/or fibula fracture (left knee disability) is remanded. 2. Entitlement to an initial rating in excess of 10 percent rating for left knee instability disability is remanded. 3. Entitlement to an initial compensable disability rating for service-connected left knee scar disability is remanded. Initially, the record reflects that private medical records were receive in March 2020 attached to the Veteran's substantive appeal which contain relevant evidence regarding the Veteran's claims but were not subsequently addressed in a supplement statement of the case (SSOC) prior to certification of the appeal to the Board as is required by 38 C.F.R. §§ 19.31(b), and 19.37(a). As this evidence was received prior to the transfer to the Board and its initial consideration by the agency of original jurisdiction (AOJ) cannot be waived, a remand is necessary for the issuance of a SSOC. 38 C.F.R. § 19.31(b). Next, the Veteran's left knee disability was last evaluated by VA in October 2017, and since then, he has asserted that his symptatomogy has worsened and the medical records reflect that he underwent a total left knee arthroplasty in April 2019. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left knee disabilities. Moreover, the additional private medical evidence of record document that the Veteran underwent a left total knee replacement during the pendency of the appeal. Since that fact triggers the reassignment of the diagnostic code used to identify the disability, and modifies the underlying criteria for rating purposes, due process considerations call for the initial evaluation under this code to be accomplished by the RO. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment providers relevant to his claims for left knee and residual left knee scar disabilities, and to provide authorization to VA to request those records. 2. Obtain the Veteran's VA treatment records for the period from July 2019 to the Present. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). 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 Veteran'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). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residual left knee scar disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. After any further development is accomplished as may become indicated, re-adjudicate the claim for an increased rating for his left knee disability, to include consideration of Diagnostic Code 5055 (Knee Replacement). J. L. Murray Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.