Citation Nr: 18156350 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 13-07 600 DATE: December 7, 2018 REMANDED Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee is remanded. Entitlement to a compensable evaluation prior to December 2, 2015, and an evaluation in excess of 20 percent since December 2, 2015, for recurrent subluxation of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2000 to October 2002. These matters are on appeal from July 2011 and April 2017 rating decisions. In November 2014, the Veteran testified at a Board hearing before the undersigned. This case was remanded for further development by the Board in April 2015. In a December 2017 decision, the Board denied the claims currently on appeal. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order, dated in August 2018, the Court granted a Joint Motion to Remand of the parties, the VA Secretary and the Veteran, and remanded the knee claims to the Board for readjudication consistent with the Joint Motion. The Court did not disturb the Board’s December 2017 grant of a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU). In the December 2017 decision, the Board also remanded the issue of entitlement to an evaluation in excess of 30 percent for bilateral pes planus with degenerative joint disease of the right foot. The requested development, to include the issuance of a Supplemental Statement of the Case (SSOC), has not been completed by the Agency of Original Jurisdiction (AOJ) and the issue has not been recertified back to the Board. Thus, this issue is not currently before the Board and it will be discussed in a subsequent Board decision. Pertinent VA treatment records were added to the Veteran’s claims file by the AOJ following the most recent SSOC in April 2017. A waiver of initial AOJ review of this new evidence by the Veteran or his representative is not of record. However, the Veteran is not prejudiced as, upon remand, the AOJ will review this new evidence in the first instance in their readjudication of the claims. 1. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee is remanded. 2. Entitlement to a compensable evaluation prior to December 2, 2015, and an evaluation in excess of 20 percent since December 2, 2015, for recurrent subluxation of the right knee is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s right knee disability, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain pain on weight-bearing testing. The recent December 2015 examination also does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community.   The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination of the current severity of his degenerative joint disease and recurrent subluxation of the right knee. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and when the joint is used repeatedly over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the degenerative joint disease and recurrent subluxation of the right knee alone and discuss the effect of the Veteran’s right knee disability on any 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 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).   2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including consideration of extraschedular ratings. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a SSOC and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel