Citation Nr: 18149237 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 09-23 337A DATE: November 9, 2018 REMANDED Entitlement to increases in the staged (10 percent prior to June 6, 2012, and 30 percent from June 6, 2013) ratings assigned for a left knee disability, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1974 to January 1981, from July 1985 to June 1988, and from July 1988 to May 1989 and also had periods of active duty training for training in the National Guard. The matter was initially before the Board on appeal from a July 2008 rating decision that, in pertinent part, continued a 10 percent rating for the service-connected left knee disability with degenerative changes. In October 2012, the Board remanded the claim for additional development, to include adjudication of the inextricably intertwined matter of entitlement to a temporary total (convalescence) rating following June 2012 left knee arthroplasty. An August 2013 rating decision awarded a temporary total (100 percent) rating (pursuant to 38 C.F.R. § 4.30) for the left knee disability from June 6, 2012 through July 2012. A January 2017 Board decision denied a rating in excess of 10 percent prior to June 6, 2012, awarded a 100 percent rating from June 6, 2012, to June 6, 3013 (under Code 5055), awarded a 30 percent rating from June 6, 2013, and denied a rating in excess of 30 percent from June 6, 2013. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a June 2017 Joint Motion for Partial Remand (JMPR) by the parties. A June 2017 CAVC Order remanded the matter for compliance with the JMPR instructions. In October 2017, the Board remanded the matter for additional development consistent with those instructions. [As noted above, the January 2017 Board decision assigned a total (schedular) rating from June 6, 2012, to June 6, 2013. Therefore, that period is not for consideration.] Entitlement to increases in the staged ratings for a left knee disability, is remanded. In October 2017, the Board remanded the claim for development of medical evidence consistent with the June 2017 CAVC Order. The Board directed the AOJ to provide the Veteran a new VA medical examination of his left knee which complies with the CAVC’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016); the Board specifically directed the examiner to note the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. On August 2018 VA (fee basis) knee examination, the examiner reported range of motion for the knee, but did not specifically report the range of motion in active motion and passive motion. Furthermore, the examiner noted evidence of pain with non-weight-bearing, but failed to report the range of motion with weight-bearing with non-weight-bearing. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A remand for corrective action is required, given the June 2017 JMPR instructions. Updated records of any VA treatment the Veteran may have received for his left knee disability are constructively of record, may contain pertinent information, and must be secured. Records of pertinent private treatment also appear to be outstanding. VA treatment records associated to the record after the Board’s October 2017 remand show that the Veteran continues to receive periodic orthopedic care/treatment at Wake Forest Baptist Medical Center (where he underwent June 2012 left knee surgery). See October 4, 2016 VA primary care note and September 25, 2017 VA telephone linked care record. The record contains records of the Veteran’s treatment at Wake Forest through January 2013; and records of left knee treatment since then are pertinent evidence, and should be obtained on remand (with the Veteran’s assistance). The matter is REMANDED for the following: 1. Secure for the record complete updated (any not already in the record) clinical records of all VA evaluations or treatment the Veteran has received for his left knee since October 2018 (the date of the most recent treatment records associated with the record). Ask the Veteran to provide identifying information (and authorizations for VA to obtain records) of all private evaluations or treatment he has received for his left knee disability (records of which are not already in the record), including specifically from Wake Forest Baptist Medical Center since January 2013. Obtain those records. 2. Thereafter, arrange for an orthopedic examination (by an examiner other than the August 2018 examiner) of the Veteran to assess the current severity of his service-connected left knee disability. The Veteran’s record (to include this remand and all records received pursuant to the development sought above) must be reviewed by the examiner in conjunction with the examination. The examiner should: Assess the current severity of the Veteran’s left knee disability. [The examiner must be provided the criteria for rating knee disabilities, and the findings noted should include all information needed to rate the disability under all potentially applicable criteria for rating knee disabilities.] The findings must include complete range of motion studies (to include any limitations due to pain, on use, during periods of exacerbation, etc.). The findings must include reports of range of motion studies for pain on BOTH active and passive motion AND in weight-bearing and non-weight-bearing. [If the knee cannot be tested on “weight-bearing,” the examiner must specifically indicate that such testing cannot be done.] All clinical findings should be reported in detail, and must include whether there are chronic residuals of severe painful motion or weakness, whether there is related subluxation or instability (and, if so, the degree); whether the knee is ankylosed (and if so, in what position); if there is dislocated semilunar cartilage with frequent episodes of locking, pain and effusion in the joint; impairment of the tibia and fibula (and if so, the degree of severity); and/or genu recurvatum. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel