Citation Nr: 18157931 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 12-24 844 DATE: December 14, 2018 REMANDED 1. Entitlement to an initial disability rating greater than 10 percent for right knee meniscus tear status post-surgical repair with symptomatic residuals prior to May 9, 2016 is remanded. 2. Entitlement to an initial disability rating greater than 20 percent for right knee meniscus tear status post-surgical repair with symptomatic residuals after May 9, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1986 to February 1989. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the April 2010 rating decision by the Regional Office (RO). By way of procedural history, the Veteran was granted service connection for a right knee disability in a June 1989 rating decision with an initial rating of 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. The rating was decreased to zero percent in a January 1992 rating decision. A claim for an increased rating was filed in November 2009, and the RO increased the rating to 10 percent under DCs 5299-5260. The Veteran submitted a notice of disagreement in February 2011. In response to a July 2012 statement of the case, the Veteran perfected her appeal in September 2012. In a March 2012 rating decision, the RO assigned a temporary total disability rating from June 27, 2011, to August 31, 2011 for the Veteran’s right knee post-surgical convalescence. In a November 2014 decision, the Board denied the Veteran’s claim for an evaluation in excess of 10 percent for right knee meniscus tear status-post surgical repair with osteophytosis under DCs 5299-5260. However, the Board awarded a separate 20 percent evaluation for dislocated semilunar cartilage of the right knee, prior to June 27, 2011, under DC 5258, and a separate 10 percent evaluation for removal of semilunar cartilage with symptomatic residuals of the right knee, beginning September 1, 2011, under DC 5259. The Veteran appealed the Board’s November 2014 decision to the United States Court of Appeals for Veterans Claims (Court), and in November 2015, the Court issued a Memorandum Decision. The Court vacated the Board’s November 2014 decision, only to the extent that it denied a rating in excess of 10 percent for the Veteran’s right knee meniscus tear status-post surgical repair with osteophytosis under DC 5299-5260. The Court did not disturb the Board’s findings favorable to the Veteran, i.e., the grant of separate ratings for DCs 5258 and 5259. The Board remanded the issue in July 2016 for additional development pursuant to the Court’s directives to afford the Veteran another examination. In a December 2016 rating decision, the Appeals Management Center (AMC) recharacterized the disability as right knee meniscus tear status post-surgical repair with symptomatic residuals, and then granted a 20 percent rating, effective May 9, 2016, under DC 5258. The case was remanded again in March 2017 for further development. In response to the Board’s March 2017 remand, the Veteran was afforded an additional VA compensation examination in June 2017. Unfortunately, the examination was not conducted during a flare-up, and the examiner did not adequately explain why such an examination was not feasible. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the case was remanded again in November 2017 for another VA examination and further development. The Board regrets the additional delay, but the Board finds the January 2018 VA examination to be inadequate and that a remand is necessary. 1. Entitlement to an initial disability rating greater than 20 percent for right knee meniscus tear status post-surgical repair with symptomatic residuals after May 9, 2016 is remanded. As noted above, the Court vacated the Board denial in November 2015 because the January 2010 and October 2013 VA examinations were deemed inadequate because they did not provide opinions regarding the Veteran’s functional loss during flare-ups, nor did they explain why this information could not feasibly be provided. Consistent with the Court Memorandum Decision, this case was remanded by the Board in July 2016 for a new VA medical opinion to address the Veteran’s functional loss during flare-ups. The Court specifically directed that clarification from the October 2013 VA examiner be obtained regarding functional loss in the right knee during flare-ups. The Court further directed that if the examiner was unable to feasibly determine the Veteran’s functional loss during flare-ups, VA should attempt to conduct an examination during a flare-up or explain why such an examination was not feasible. The Veteran was afforded a new VA compensation examination in October 2016. The examination was conducted during a flare-up and the examiner determined that upon flare-ups, flexion was to 50 degrees. However, as indicated in the March 2017 Board remand, a new examination was needed as the Court in Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia triggers additional requirements that must be met prior to finding that a VA examination was adequate. In other words, the October 2016 examination was not compliant with Correia. The Veteran was then afforded an additional VA compensation examination in June 2017 in response to the March 2017 Board remand. The report included findings for pain on active and passive range of motion, pain on weight bearing and non-weight bearing, and range of motion measurements of the opposite knee. However, the examination was not conducted during a flare-up, and the examiner did not adequately explain why such an examination was not feasible. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Board remanded the Veteran’s claim for an updated VA examination in accordance with the Court Memorandum Decision, Correia, and Sharp. The Veteran was afforded another VA examination in January 2018 in response to the November 2017 Board remand. The report included findings for pain on active and passive range of motion, pain on weight bearing and non-weight bearing, and range of motion measurements of the opposite knee. See Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). However, the examiner did not conduct the examination during a flare-up and did not provide an adequate explanation for why such an examination was not feasible. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner did take the Veteran’s lay statements into account regarding the effects of a flare-up on the Veteran’s right knee, but there is not sufficient information regarding the Veteran’s range of motion during a flare-up. Furthermore, the examiner did not conduct repetitive use testing on the Veteran and failed to provide a sufficient explanation about the Veteran’s functional ability following repetitive use. The examiner also noted less movement than normal due to ankylosis in the comments regarding additional contributing factors of the disability, but then checked off that the Veteran did not have ankylosis in the ankylosis section of the Disability Benefits Questionnaire. The Board finds the January 2018 examination to be inadequate because the examiner did not conduct the examination during a flare-up, as ordered in the previous November 2017 Board remand. Furthermore, the examiner did not conduct repetitive use testing or explain why this testing was not feasible. This testing could have shed light on the Veteran’s functional limitations. In addition, the examiner provided contradictory information regarding whether the Veteran had ankylosis. Therefore, the Board finds that a remand is warranted for further development. 2. Entitlement to an initial disability rating greater than 10 percent for right knee meniscus tear status post-surgical repair with symptomatic residuals prior to May 9, 2016 is remanded. As discussed above, the Board finds the January 2018 examination is inadequate and that further development and a new VA examination are necessary to address flare-ups, functional impact after repetitive use, and ankylosis. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA treatment records dating, as well as any pertinent, outstanding private treatment records and associate them with the file. 2. After associating any outstanding records, obtain a new VA examination to address the severity of the Veteran’s right knee disability. The VA should attempt to conduct an examination during a flare-up of the Veteran’s condition to the extent possible. If the VA examination cannot be conducted during a flare-up, then the examiner shall provide an adequate explanation as to why such an examination was not feasible, pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). The claims file and a copy of this REMAND must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The examiner should: (a) Assess the severity of the Veteran’s right knee disability. (b) Conduct range of motion testing (expressed in degrees, with standard ranges provided for comparison purposes) in active motion, passive motion, weight-bearing, and non-weight-bearing for each knee. If the examiner is unable to conduct this testing or concludes that such testing is unnecessary in this case, he or she should clearly explain why this is so for each test that is not performed. (c) Render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins and should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain, and/or any of the other symptoms noted above, during any flare-ups and with repeated use. Any additional functional loss should be expressed in terms of additional degrees of limited motion. (d) With regard to FLARE-UPS, if the examiner is unable to feasibly determine the Veteran’s functional loss in the right knee during flare-ups, the examiner must explain why such an examination is not feasible. However, before a determination of infeasibility, the examiner MUST obtain information regarding severity, frequency, duration, precipitating and alleviating factors, and the extent of functional impairment of flares from the Veteran and from any pertinent evidence of record. A complete rationale for all proffered opinions must be provided. (e) The examiner should conduct repetitive use testing on both of the Veteran’s knees and opine as to the Veteran’s functional ability with repeated use over a period of time. If such testing cannot be conducted, then the examiner shall explain why such an examination is not feasible. (g) The examiner shall examine the Veteran and the Veteran’s medical records to determine whether the Veteran has ankylosis on one or both of her knees. The examiner shall also address the discrepancy in the January 2018 VA examination regarding whether the Veteran has ankylosis. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If any opinion and supporting rationale cannot be provided without resorting to speculation, please state the reason why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). 3. Thereafter, readjudicate the issues on appeal. If the benefits sought remain denied, furnish to the Veteran and her representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Bognar, Associate Counsel