Citation Nr: 18160990 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-11 574 DATE: December 28, 2018 ORDER A rating of at least 10 percent for painful motion of the left knee is granted, subject to the law and regulations governing the payment of monetary benefits. A rating of at least 10 percent for painful motion of the right knee is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 10 percent for left knee strain is remanded. Entitlement to a rating in excess of 10 percent for right knee strain is remanded. Entitlement to a rating in excess of 10 percent for lumbosacral strain with degenerative disc disease is remanded. FINDINGS OF FACT The Veteran’s service-connected left and right knee disabilities are manifested by at least painful and limited motion. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability rating of at least 10 percent for left knee strain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a); 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5620. 2. The criteria for the assignment of a disability rating of at least 10 percent for right knee strain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a); 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 to May 2006. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. Increased Ratings Left and Right Knee Strains The Board finds that a rating of at least 10 percent is warranted for the Veteran’s right and left knee disabilities throughout the appeal period. “It is the intention to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” 38 C.F.R. § 4.59. Thus, when the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a claimant may still be entitled to at least the minimum compensable rating for the joint involved if the evidence shows that the disability is productive of pain, instability or malalignment. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Mitchell v. Shinseki, 25 Vet. App. 32, 39 (2011). This section applies whether or not the claimant has been diagnosed with arthritis. The Board notes that a 10 percent rating is the minimum compensable rating for the knee under DC 5260, and thus the minimum compensable rating for application is 10 percent. Here, the Veteran has reported pain on motion throughout the appeal period. The Veteran is competent to report the pain he experiences, and the Board finds his reports credible. Thus, a rating of at least 10 percent is warranted for each of the Veteran’s knee disabilities throughout the appeal period. REASONS FOR REMAND Remand is necessary to provide the Veteran with new VA examinations addressing his low back and knee disabilities. The U.S. Court of Appeals for Veteran’s Claims (the Court) has issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) concerning the adequacy of VA orthopedic examinations. The Court in Correia 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, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” Sharp at 35. In light of these decisions, the Board finds that a new VA examination should be provided addressing the Veteran’s low back and knee disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: 1. Obtain all outstanding VA medical records and ask the Veteran to provide authorizations for any private medical records he would like considered in connection with his appeal. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back and knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. For the Veteran’s orthopedic disabilities, the examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on the next page)   Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. A rationale should be provided. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel