Citation Nr: 18156577 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 10-08 592 DATE: December 11, 2018 REMANDED An initial rating higher than 20 percent for service-connected left knee strain with internal derangement (hereinafter “left knee disability”) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to September 2007. This matter is on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) which granted service connection, and assigned an initial 10 percent rating, for left knee strain with internal derangement. In June 2014, the Board of Veterans’ Appeals (Board) remanded this matter for additional development. The Board increased the initial rating to 20 percent in a May 2016 decision (another issue also was decided). However, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) in February 2018, which vacated that portion of the decision that denied an initial rating in excess of 20 percent and remanded the matter back to the Board for readjudication. Left Knee Disability The Board’s May 2016 decision changed the Diagnostic Code used to rate the Veteran’s left knee disability to 5258 and then determined that a separate initial rating under Diagnostic Code 5003 or 5259 would be impermissible pyramiding. 38 C.F.R. § 4.14 (2018). In the JMPR, the validity of this determination was challenged due to recent caselaw. Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating twice for the same symptoms or functional impairment). It directed the Board to issue a readjudicate on this basis, to include a discussion of whether Diagnostic Code 5258 adequately compensates the Veteran for all his symptoms. There was no directive to arrange for any additional development. That the Veteran’s representative did not argue that any such development was necessary in a June 2018 argument memorandum also is notable. Nevertheless, the Board finds on its own that additional development is necessary. A new VA medical examination primarily is needed. A March 2016 examination of the Veteran’s right knee also addressed his service-connected left knee disability to an extent, and examinations specifically for this disability occurred in July 2014 and November 2008. None contain all findings that recently (after the Board’s May 2016 decision) became required. These findings include testing “for pain on both active and passive motion, in weight-bearing and nonweight-bearing of the joint and, if possible, with the range of the opposite undamaged joint” or explaining why such testing cannot be conducted. Correia v. McDonald, 28 Vet. App. 158 (2016) (citing 38 C.F.R. § 4.59 (2018)). When an examination is not conducted during a flare-up, they also include estimating functional loss during one based on other information or explaining why such an estimate cannot be provided. Sharp v. Shulkin, 29 Vet. App. 26 (2017). To ensure the new VA medical examination concerning the Veteran’s service-connected left knee disability is fully informed, any updated VA treatment records should be obtained first. The most recent available are dated in early November 2018. Additional pertinent evidence to include these most recent VA treatment records and everything associated with the claims file on remand finally must be reviewed initially by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.1304(c) (2018). Indeed, the May 2016 waiver of initial review of such evidence from the Veteran’s representative at the time (not the same as his representative now) covers only the March 2016 VA medical examination and VA treatment records dated from January 2015 to February 2016. This matter is REMANDED for the following action: 1. Follow established procedure with respect to obtaining the Veteran’s updated VA treatment records (those dated from early November 2018 to present). 2. After completing paragraph 1, arrange for the Veteran to undergo a VA medical examination concerning his service-connected left knee strain with internal derangement. The claims file shall be reviewed, and the Veteran should be interviewed and assessed. This evaluation should include testing range of motion of the Veteran’s left knee as well as his right knee, if undamaged, on both active and passive motion as well as in weight-bearing and nonweight-bearing. The examiner shall note when there is pain during this testing. If the examination is not conducted when the Veteran is experiencing a flare-up, the examiner further shall estimate range of motion during a flare-up based on information from the Veteran as well as all other sources (i.e. statements from others, treatment records, examinations, etc.) on their severity, frequency, duration, precipitating and alleviating factors, and functional impairment. If any of the instructions in this paragraph cannot be completed, the examiner finally shall clearly explain why not. 3. Lastly, conduct an initial review of all additional pertinent evidence and readjudicate this matter. If the determination made is not fully favorable to the Veteran, issue a supplemental statement of the case. Allow him and his representative time to respond before returning this matter to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records or to report for a scheduled VA medical examination, for example, may impact the determination made. 38 C.F.R. § 3.655 (2018). The Veteran also is advised that he has the right to submit additional argument along with additional evidence, whether himself or through his representative. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter finally must be afforded prompt treatment. Indeed, all remands by the Board or the Court are to be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Becker, Counsel