Citation Nr: 19171984 Decision Date: 09/17/19 Archive Date: 09/17/19 DOCKET NO. 19-01 383 DATE: September 17, 2019 REMANDED The claim of entitlement to a rating greater than 10 percent for chondromalacia of the left patella with laxity anterior cruciate ligament and degenerative joint disease (left knee disability) is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from August 1963 to October 1967. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2016 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri denied a rating greater than 10 percent for the left knee disability. In July 2017, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2018. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in January 2019. Also, this appeal has been advanced on the Board’s docket, pursuant to 38 U.S.C. § § 7107(a)(2) and 38 C.F.R. § 20.900(c). The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the claim on appeal, prior to appellate consideration, is warranted. The 10 percent rating assigned for the Veteran’s left knee disability is based on noncompensable painful motion under DCs 5003-5260. Here, the Veteran alleges that his left knee disability is worse than the assigned 10 percent rating. Pertinent to the current claim for increase, the record includes the report of an October 2018 VA examination report. However, the examination report does not comply with range of motion (ROM) requirements as annunciated by the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158, 168 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011); and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The VA examiner noted the presence of pain on weight bearing, non-weight-bearing and on passive ROM testing; however, the actual numeric ROM testing results were not reported, as is required by Correia. Moreover, the examiner indicated the left knee had abnormal ROM with flexion limited to 80 degrees, which caused pain and functional loss. However, it is unclear whether the examiner was indicating where motion limiting pain began, as required by Mitchell. Lastly, the examiner declined to fill out the flare-ups section of the examination report, as the examination was not conducted during a flare up. Under such circumstances, however, the examiner should have considered the Veteran’s documented medical history and assertions in providing an estimate of the extent of functional loss during flare-ups, as contemplated in Sharp. Given the deficiencies noted above, a remand is warranted to afford the Veteran new VA knee examination, particularly to obtain testing results and clinical findings responsive to the considerations addressed in Correia, Mitchell, and Sharp, as discussed above. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the claim. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Adjudication of the claims should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. The matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record, particularly regarding any private (non-VA) treatment. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran’s response has expired, arrange for the Veteran to undergo VA knee examination, by appropriate medical professional, to assess the current severity of his left knee disability. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated clinician, and the examination report should reflect consideration of the Veteran’s documented medical history and lay assertions. The examiner should conduct range of motion testing of the left knee (expressed in degrees) on both active motion and passive motion and in both weight bearing and non-weight bearing.. The examiner should also conduct range of motion testing of the right knee, for comparison purposes. 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 so state and explain why. On range of motion testing, the examiner should 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 motion-limiting pain begins. Also, if the examination is NOT conducted during a flare up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Additionally, the examiner should indicate whether there is any ankylosis in the left knee, and, if so, whether it is favorable or unfavorable, and the angle at which the knee is held. Further, the examiner should indicate whether there is subluxation or lateral instability in the left knee, and, if so, whether such is best characterized as mild, moderate, or severe. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Wells, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.