Citation Nr: 18157662 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 09-16 119 DATE: December 13, 2018 REMANDED Entitlement to an initial disability rating in excess of 10 percent for right knee chondromalacia (claimed as right knee tendonitis) is remanded. REASONS FOR REMAND The Veteran served on active duty for training from September 1998 to January 1999 and active duty from January 2003 to January 2005. This matter comes before the Board of Veterans’ Appeals (the Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction of the claims file is with the RO in St. Louis, Missouri. As part of a May 2017 decision, the Board denied the Veteran’s claim for an initial disability rating in excess of 10 percent for right knee chondromalacia (claimed as right knee tendonitis). The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Order granting a Joint Motion for Partial Remand (JMR), the Court vacated the Board’s May 2017 decision, in part, and remanded the case for further development in compliance with the directives specified in the JMR. 1. Entitlement to an initial disability rating in excess of 10 percent for right knee chondromalacia (claimed as right knee tendonitis) is remanded. In the June 2018 JMR, the parties agreed that the Board erred in providing an adequate statement of reasons or bases regarding (1) whether the Veteran’s right knee disability warranted a separate rating under Diagnostic Code (DC) 5257 and (2) whether the VA examinations of record are adequate to fulfill the VA’s duty to assist. Specifically, medical opinions obtained by VA examiners in August 2008, August 2012, and March 2016 failed to provide an adequate opinion as to whether the Veteran suffers from additional functional loss or limitation of motion during flare-ups as a result of pain. The examinations likewise did not state whether range-of-motion testing was concluded on both active and passive range-of-motion testing. In the August 2012 examination, the examiner did not attempt to quantify functional impairment caused by flare-ups in terms of additional range-of-motion loss. As such, the VA examinations are rendered inadequate as to functional loss or limitation of motion during flare-ups as a result of pain and active and passive range-of-motion testing. On remand, an addendum opinion should be obtained. That addendum opinion should discuss whether the Veteran’s right knee disability warrants a separate rating under DC 5257, whether the Veteran suffers from additional functional loss or limitation of motion during flare-ups, and results of active and passive range-of-motion testing. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identity any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained and associated with the claims file. 2. After such development, return the claims file, including the copy of this remand to a VA examiner for an in-person examination and an addendum opinion addressing the Veteran’s right knee chondromalacia and any functional loss or limitation of motion experienced by the Veteran during flare-ups of pain or when the Veteran’s right knee is used over a period of time. The VA examiner should note that any examination need not take place during an actual flare-up; however, if the examiner feels that he or she is unable to estimate functional loss due to flare-ups, she or she must explain the basis for that opinion. The examiner should respond to the following: (a.) Describe all evidence of functional loss detailed by the Veteran or available in the record with regard to flare-ups of the Veteran’s right knee. (b.) Considering all evidence of functional loss or limitation of motion available of record, estimate the functional impairments resulting from flare-ups of the Veteran’s right knee. (c.) Considering all evidence of functional loss or limitation of motion available of record, discuss the functional impairments resulting from repeated use of the Veteran’s right knee. (d.) Determine whether the Veteran’s right knee disability is manifested by recurrent subluxation and/or lateral instability, and if so, whether such is slight, moderate or severe. In this regard, please comment on the two VA medical opinions which found that the appellant’s “bilateral instability in both knees was a normal variant for her anatomy.” Please also reconcile this finding with the August 2008 VA examiner’s finding of normal stability in both knees. (e.) Conduct active and passive range-of-motion testing. (f.) Provide a rational for all opinions. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kuksova, Associate Counsel