Citation Nr: 18149484 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 08-29 586 DATE: November 9, 2018 REMANDED Entitlement to a separate disability rating for limitation of flexion associated with right knee degenerative joint disease (DJD) is remanded. Entitlement to a separate disability rating for limitation of extension associated with right knee DJD is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from June 1981 to April 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA). These matters were previously before the Board in March 2017. At the time of the March 3, 2017 Board decision, the issues before the Board included whether the Veteran was entitled to a rating in excess of 10 percent for right knee DJD. At the time, the Veteran’s condition was rated under Diagnostic Code 5010. The Board found that the Veteran’s condition was more appropriately rated under Diagnostic Code 5258 pertaining to removal of semilunar cartilage with frequent episodes of locking pain and effusion into the joint, and awarded a 20 percent disability rating. The Board also held that separate disability ratings were not warranted under Diagnostic Code 5010 and 5260 or 5261 because it would constitute pyramiding. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (CAVC). While on appeal before CAVC, the parties entered into an Amended Joint Motion for Partial Remand. Amended JMPR (May 10, 2018). The terms of the Amended JMPR state that the Board presented flawed reasons and bases for why the Veteran could not receive separate disability ratings under Diagnostic Code 5010. Additionally, the parties agreed that the June 2014 VA examination was inadequate because the examiner did not provide an estimate of the additional degrees of range of motion loss due to pain during flare-ups or provide a reason why an estimate could not be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). Furthermore, the parties agreed that the June 2014 VA examination was inadequate because the examiner did not indicate if range of motion testing was conducted based on active and passive motion or under weight-bearing and nonweight-bearing conditions. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158, 168 (2016). On May 14, 2018, CAVC ordered that the March 3, 2017, Board decision be vacated and remanded consistent with the terms of the Amended JMPR. This appeal is now again before the before the Board. The Board has recharacterized the issue(s) to accurately reflect what is on appeal. The March 2017 Board decision found that there was no evidence of right knee ankylosis, total right knee replacement, impairment of the right tibia or fibula, or genu recurvatum of the right knee. The Veteran did not contend in the Amended JMPR that such conditions or evidence exists, or that separate disability ratings are warranted under those diagnostic codes. Therefore, Diagnostic Codes 5256, 5055, 5262, and 5263, respectively, do not apply. Instead, the Veteran argued that separate disability ratings were warranted for right knee DJD with limitation of flexion and/or limitation of extension. Accordingly, the Board recharacterized the issues on appeal as described above. These issues stem from the claim for a rating in excess of 10 percent for degenerative joint disease of the right knee addressed in the March 2007 rating decision. The Veteran has a separate appeal pertaining to an award of attorney’s fees. The Board’s initial review indicates that it is being processed by the agency of original jurisdiction (AOJ). If upon further review action is necessary by the Board, it will issue a separate decision. 1. Entitlement to a separate disability rating for limitation of flexion associated with right knee DJD is remanded. Since the June 2014 VA examination was found to be inadequate, the Board cannot make a fully informed decision on this issue before a new examination is obtained. Accordingly, this issue is remanded for a new examination pursuant to the terms of the Amended JMPR. 2. Entitlement to a separate disability rating for limitation of extension associated with right knee DJD is remanded. Since the June 2014 VA examination was found to be inadequate, the Board cannot make a fully informed decision on this issue before a new examination is obtained. Accordingly, this issue is remanded for a new examination pursuant to the terms of the Amended JMPR. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the manifestations and severity of limitation of flexion and/or extension associated with his right knee degenerative joint disease. The examiner must test the Veteran’s range of motion of the right knee on active motion, passive motion, including with pain, on weight-bearing and nonweight-bearing. 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. To the extent possible, the examiner should identify all symptoms and functional impairment due to right knee limitation of flexion and/or extension (if any) and discuss the effect of such on occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment including additional loss of motion due to flare-ups or repetitive motion, 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). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel