Citation Nr: 18146530 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 02-06 874A DATE: October 31, 2018 REMANDED Entitlement to an initial disability rating in excess of 10 percent for residuals of a right knee injury is remanded. Entitlement to an initial disability rating in excess of 10 percent for residuals of a left knee injury is remanded. Entitlement to an increased disability rating in excess of 10 percent for a right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1985 to May 1995. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2003, the Veteran testified at a hearing before a Decision Review Officer (RO hearing). A copy of the hearing transcript is associated with the record. In March 2008, the Board, in pertinent part, denied initial disability ratings in excess of 10 percent for residuals of right and left knee injuries. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2010 Memorandum Decision, which became final pursuant to an October 2010 Mandate, the Court vacated and remanded the Board’s decisions regarding the Veteran’s claims for initial disability ratings for his right and left knee disabilities. In May 2011, the Board remanded the above-cited initial rating claims to the RO. In June 2012, the Veteran testified at a videoconference hearing before the undersigned at the Montgomery, Alabama RO. His attorney was present at the Cincinnati, Ohio RO. A copy of the hearing transcript has been associated with the Veteran’s electronic record. In January 2013, the Board remanded the matters on appeal to the RO for additional development. In November 2016, the case returned to the Board, at which time, in pertinent part, the remaining issues were remanded for further development. 1. Entitlement to an initial disability rating in excess of 10 percent for residuals of a right knee injury is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for residuals of a left knee injury is remanded. 3. Entitlement to an increased disability rating in excess of 10 percent for a right ankle disability is remanded. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. These issues were previously before the Board in November 2016, at which time they were remanded for further development. Specifically, the Board sought examinations consistent with the Court’s precedential decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court found that the final sentence of 38 C.F.R. § 4.59 required that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Specifically, the Court held “that the final sentence of 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.” The Veteran was provided VA examinations in March 2017. However, the examinations do not meet the specifications of Correia, nor do they substantially comply with the Board’s November 2016 remand directives. Accordingly, remand is warranted. Right and Left Knees Regarding the right and left knees, the examiner was directed to conduct range of motion testing on active motion, passive motion, weight-bearing and non weight-bearing and record the results in degrees. The Board notes that the examiner did not record range of motion testing on passive motion, weight-bearing, and non weight-bearing for either joint. The only explanation given regarding testing for pain on passive range of motion was that it was not medically appropriate to test for pain on passive range of motion, due to increased risk of injury. However, no explanation is provided regarding the absence of range of motion results for weight-bearing and non weight-bearing. Given the absence of range of motion measurements, the examiner also did not report the extent of any additional limitation of motion (in degrees) due to weakened movement, excess fatigability, incoordination, pain, and/or flare-ups, with respect to all ranges of motion. Further, the examiner indicated that there was no history of recurrent effusion, yet the medical history notes state that an MRI from 2010 of the right side showed chondromalacia patella with trace effusion. The examiner also did not note if the knees lock. Right Ankle Regarding the right ankle, the examiner was directed to conduct range of motion testing for the right ankle and the paired joint (left ankle) on active motion, passive motion, weight-bearing and non weight-bearing and record the results in degrees. The Board notes that the examiner did not record range of motion testing on passive motion, weight-bearing, and non weight-bearing for either joint. The explanation given regarding testing for pain on passive range of motion was that it was not medically appropriate to test for pain on passive range of motion, due to increased risk of injury. Presumably the examiner was referring to the right ankle, although that is not specified. However, no explanation is provided regarding the absence of range of motion results for weight-bearing and non weight-bearing. Given the absence of range of motion measurements, the examiner also did not report the extent of any additional limitation of any right ankle motion (in degrees) due to weakened movement, excess fatigability, incoordination, pain, and/or flare-ups, with respect to all ranges of right ankle motion. Finally, the examiner did not indicate whether the limited motion of the right ankle, if any, is best characterized as marked or moderate. Extraschedular Consideration In addition, the Board directed the RO to consider whether to refer to the Director, Compensation Service, the issues of the Veteran’s entitlement to an extraschedular rating. It does not appear that extraschedular review was considered. The Board notes that in exceptional circumstances, where the schedular evaluations are found to be inadequate, 38 C.F.R. § 3.321(b)(1) provides that a veteran may be awarded a rating higher than that encompassed by the schedular criteria. Under the regulation, an extraschedular disability rating is warranted upon a finding that “the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” If exceptional circumstances are found, the matter must be referred to the Director, Compensation Service, for consideration of assignment of an extraschedular evaluation. See id. In a September 2016 written argument to VA, the Veteran’s attorney maintained that monthly flare-ups and instability that necessitated the use of a cane caused by the Veteran’s right ankle disability warranted an extraschedular rating. (See Veteran’s Attorney’s September 2016 written argument to the Board at pg. 2). The Veteran’s request for extraschedular consideration was reiterated in September 2018 correspondence, in which she noted that the Veteran needing frequent breaks was an indication of marked interference with employment. Thus, while on remand, the Board requests that the RO consider whether to refer the issues of entitlement to extraschedular ratings regarding his bilateral knee and right ankle disabilities. Attorney’s Objections In June 2017, the Veteran’s representative submitted argument objecting to the adequacy of the March 2017 VA examinations. First, she objected to the qualifications of the examiner, as a nurse practitioner, to perform an orthopedic examination. In addition, she argued that evidence had been overlooked, including an MRI of the left knee printed on April 2017, and that the examiner’s descriptions of the Veteran’s functional limitations were unacceptably vague. Without making any determinations regarding the merits of these arguments, upon remand, the Board will seek to address the representative’s concerns. Accordingly, upon remand, the Board asks that a new examiner be obtained, preferably one with stated orthopedic experience, and that evidence referenced regarding the noted MRI be considered. The Board also asks that additional detail be provided regarding the descriptions of the Veteran’s functional limitations. The matters are REMANDED for the following action: 1. Updated treatment records, VA and non-VA, should be obtained and added to the claims file. 2. Following completion of the above, schedule the Veteran for a new VA examination, with an examiner with orthopedic experience, if possible, to determine the current severity of his left and right knee disabilities. All relevant electronic records, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. In particular, the examiner is asked to note review of current medical care at the VAMC showing an MRI of the left knee, undated but printed on April 2017, stating that the Veteran suffers from “moderate to severe patellofemoral chondromalacia [damage to the cartilage of the knee] and patellar tendon lateral femoral condyle friction syndrome [friction between the patellar tendon, i.e., the part just under the kneecap, and the femur].” All indicated studies, including range of motion studies in degrees, should be performed. In reporting the results of range of motion testing for the left and right knees, active motion, passive motion, weight-bearing and non weight-bearing must be recorded in degrees. 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 also specifically answer the following question with respect to all appropriate ranges of left and right knee motion: What is the extent of any additional limitation of any left and right knee motion (in degrees) due to weakened movement, excess fatigability, incoordination, pain, and/or flare-ups? The examiner should note the degree of severity of any instability or subluxation of the left and/or right knee; determine if the left and/or right knee locks and, if so the frequency of the locking; and note the presence of any effusion into the left and/or right knee joint. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his left and right knee disabilities. If the examiner rejects the Veteran’s reports regarding symptoms, the examiner must provide a reason for doing so. If an opinion cannot be provided without resort to speculation, the examiner must provide an explanation for why this is so; stating whether the inability is due to the limits of the examiner’s knowledge, the limits of medical knowledge in general; or there is missing evidence that would permit the opinion to be provided. In particular, the examiner is asked to provide detailed descriptions of the Veteran’s functional limitations for work due to his service-connected left and right knee disabilities. 3. Schedule the Veteran for a VA examination, with an examiner with orthopedic experience, if possible, to determine the current severity of his right ankle disability. All relevant electronic records, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. All indicated studies, including range of motion studies in degrees, should be performed. In reporting the results of range of motion testing for the right ankle and the paired joint (left ankle), active motion, passive motion, weight-bearing and non weight-bearing must be recorded in degrees. 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 also specifically answer the following question with respect to all ranges of right ankle motions: What is the extent of any additional limitation of any right ankle motion (in degrees) due to weakened movement, excess fatigability, incoordination, pain, and/or flare-ups? The examiner should indicate whether the limited motion of the right ankle, if any, is best characterized as marked or moderate. The examiner should note the presence, or absence, of (i) ankylosis of the right ankle, noting plantar flexion and dorsiflexion; (ii) ankylosis of the subastragalar or tarsal joint, noting poor or good weight-bearing position; (iii) malunion of the os calcis or astragalus, noting marked or moderate deformity; and (iv) astragalectomy. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his right ankle disability. If the examiner rejects the Veteran’s reports regarding symptoms, the examiner must provide a reason for doing so. If an opinion cannot be provided without resort to speculation, the examiner must provide an explanation for why this is so; stating whether the inability is due to the limits of the examiner’s knowledge, the limits of medical knowledge in general; or there is missing evidence that would permit the opinion to be provided. In particular, the examiner is asked to provide detailed descriptions of the Veteran’s functional limitations for work due to his service-connected right ankle disability. (CONTINUED ON NEXT PAGE) 4. Thereafter, the RO should consider whether to refer to the Director, Compensation Service, the issues of the Veteran’s entitlement to extraschedular ratings. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel