Citation Nr: 18153546 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 14-07 258A DATE: November 28, 2018 REMANDED Entitlement to an initial evaluation in excess of 20 percent disabling for instability, right knee, status post ACL/meniscus reconstructive surgery, is remanded. Entitlement to an initial evaluation in excess of 10 percent disabling for right knee strain, status post ACL reconstruction and meniscectomy, is remanded. Entitlement to a compensable initial disability rating for scars, status post anterior cruciate ligament reconstruction and surgery, right knee, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2006 to July 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and March 2014 rating decisions. In March 2018, the Veteran testified at a Travel Board hearing before the undersigned, and a transcript is of record. The Board notes that in the December 2009 rating decision on appeal, service connection was granted for the Veteran’s right knee disability while service connection was denied for hearing loss, tinnitus, and sleep disturbances. In his January 2010 notice of disagreement, the Veteran disagreed with all determinations. In the March 2014 rating decision, service connection was granted for sleep disturbances and tinnitus, and the current initial evaluations of disability for the Veteran’s right knee disability were assigned. The March 2014 statement of the case addressed the evaluations of disability of the right knee disability and service connection for hearing loss. In his March 2014 VA Form 9, the Veteran appealed all the issues addressed in the March 2014 statement of the case, and enumerated that he wished to appeal right knee condition, hearing loss, tinnitus, and sleep disturbances. In an April 2014 statement in support of claim, he clarified that he was appealing only the evaluation of his right knee disability, which is addressed herein. 1. Entitlement to an initial evaluation in excess of 20 percent disabling for instability, right knee, status post ACL/meniscus reconstructive surgery, is remanded. 2. Entitlement to an initial evaluation in excess of 10 percent disabling for right knee strain, status post ACL reconstruction and meniscectomy, is remanded. 3. Entitlement to a compensable initial disability rating for scars, status post anterior cruciate ligament reconstruction and surgery, right knee, is remanded. The Veteran essentially contends that his service-connected right knee disability is more disabling than contemplated by the initial evaluations for right knee instability, limitation of flexion of the right knee, and surgical scars resulting from right knee surgery. The Veteran filed his claim for entitlement to service connection for his right knee disability in August 2009, within one year of separation from active duty, and was afforded a VA examination in February 2014. During his March 2018 hearing, the Veteran testified that he had not sought any treatment for his right knee disability since his last surgery in 2010. He testified that he believed his right knee was not as strong as it was during the February 2014 VA examination. He stated that after the last surgery in 2010 it seemed the knee was stronger but now it had started to get weaker. He stated that the cold irritated it more than before. He stated that he believed that its range of motion was similar to what it was during the examination. He stated that his right knee did not interfere with his work, but he stated that he always wore a knee brace at work in case he had to lift things and he described measures taken to alleviate knee pain when it occurred during work. Additionally, the Board finds that the February 2014 VA examination is inadequate for evaluating musculoskeletal disability. Since this examination, the United States Court of Appeals for Veterans Claims (Court) has held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA musculoskeletal examination is adequate. As the February 2014 VA examination did not fully comply with the requirements of Correia and 38 C.F.R. § 4.59, a new examination is required with regard to the Veteran’s claim. Accordingly, on remand, the Veteran must be afforded a new VA examination to determine the nature and severity of his service-connected right knee disability taking into consideration his statements, the evidence of record, and accepted medical principles. 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a new VA examination to assess the current severity of his service-connected right knee disability, to include motion, instability, and scars. The claims folder (including Virtual VA and VBMS documents) and a copy of this Remand must be provided to the examiner in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s testimony during his March 2018 Board hearing, and the examiner must indicate on the examination report that such review was undertaken. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. All pertinent symptomatology and findings must be reported in detail in accordance with Diagnostic Codes 5256 through 5263. All ranges of motion involving the Veteran’s service-connected right knee disability should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran’s disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Additionally, an opinion must be given as to whether any pain associated with the Veteran’s right knee disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. To comply with the Court’s recent precedential decision in Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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 provide an opinion concerning the impact of the Veteran’s right knee disability on the Veteran’s ability to work to include whether the Veteran is unemployable because of his service-connected disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available for review. (Continued on the next page)   2. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraph above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney