Citation Nr: 18154898 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 07-12 965 DATE: December 4, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for osteoporosis of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from February 2001 to February 2005. This matter comes before the Board on appeal from a June 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In February 2017, the Veteran was notified that the VLJ who conducted his hearing was no longer at the Board. The Veteran did not request a new hearing. In July 2015, the Board remanded the appeal for additional development. In July 2017, the Board denied the Veteran’s claims for service connection for right ear hearing loss and for an initial rating in excess of 10 percent for right knee osteoporosis, and remanded his claims for service connection for residuals of a heat stroke, service connection for a speech disorder, service connection for a genitourinary disability, and service connection for sinusitis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of Veterans Affairs (Parties), vacated the July 2017 Board decision insofar as it denied an initial rating in excess of 10 percent for right knee osteoporosis, and remanded that matter to the Board for compliance with the JMPR instructions. The Veteran expressly abandoned his claim for service connection for right ear hearing loss. See JMPR at 1. The Board observes that the Veteran’s service connection claims that were remanded by the Board in July 2017 have since been addressed. Specifically, a March 2018 rating decision granted service connection for erectile dysfunction, and in June 2018, the Board denied the Veteran’s claims for service connection for a speech disability and residuals of a heat stroke, and remanded his claim for service connection for sinusitis for additional development, which has not yet been completed. Thus, these issues will not be addressed herein. 1. Entitlement to an initial rating in excess of 10 percent for osteoporosis of the right knee is remanded. The Parties agreed in the JMPR that the Board erred in relying upon an August 2015 VA examination that did not include passive range of motion testing or an assessment of where in the Veteran’s right knee range of motion he began to experience pain. See JMPR at 2-3. Thus, remand is necessary to provide the Veteran an examination that complies with the requirements of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner should also estimate the functional loss that the Veteran would experience during right knee flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his right knee disability. The claims file should be made available to and be reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in nonweight-bearing . Please specify range of motion measurements in all areas outlined above. For each range of motion study conducted, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. 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. Please also provide an opinion describing functional impairment of the Veteran’s right knee disability due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. In reaching his or her conclusions, the examiner should specifically review and consider the Veteran’s reports of pain on forceful activity such as squatting and episodes of his knee locking and at times giving way. If the examiner finds that knee instability is absent, the examiner should reconcile that finding to the extent possible with the notation in the August 2015 examination report that knee instability was appreciated on that examination. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel