Citation Nr: 20007334 Decision Date: 01/29/20 Archive Date: 01/28/20 DOCKET NO. 14-01 255 DATE: January 29, 2020 REMANDED Entitlement to an initial disability rating in excess of 10 percent for status post left knee medial meniscus tear repair prior to August 21, 2015, and a compensable disability rating thereafter is remanded. Entitlement to an initial disability rating in excess of 40 percent for limited extension of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1991 to May 1991 and from May 2004 to February 2005, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of history, a March 2010 rating decision, in pertinent part, granted entitlement to service connection for status post left knee medial meniscus tear repair with a noncompensable disability rating and denied service connection for a first metatarsophalangeal joint infection of the right great toe with severe arthritis (right great toe disability). The Veteran submitted a February 2011 notice of disagreement (NOD) and a statement of the case (SOC) was issued in November 2013. The Veteran perfected her appeal and the Board remanded the claims in June 2015. In November 2015, following additional development, the RO granted service connection for a great right toe disability, granted service connection for limited extension of the left knee at 40 percent, effective August 21, 2015, and granted an increased initial disability rating for status post left knee medial meniscus tear repair at 10 percent prior to August 21, 2015 and noncompensable thereafter. With regard to the Veteran’s great right toe disability, the grant of service connection is considered a total grant of benefits sought on appeal and as such, this issue is no longer before the Board. With regard to the Veteran’s status post left knee medial meniscus tear repair, as the grant of a 10 percent rating prior to August 21, 2015 did not constitute a full grant of the benefit sought, the increased rating issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Additionally, the Board assumes jurisdiction over the initial rating assigned for limited extension of the left knee as it is part and parcel of the Veteran’s appeal of the disability ratings assigned for his service-connected status post left knee medial meniscus tear repair. 1. Entitlement to an initial disability rating in excess of 10 percent for status post left knee medial meniscus tear repair prior to August 21, 2015, and a compensable disability rating thereafter is remanded. 2. Entitlement to an initial disability rating in excess of 40 percent for limited extension of the left knee is remanded. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran was afforded a VA examination for her knee in August 2015. Review of the examination report reveals that it does not include range of motion testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing for either knee as required by 38 C.F.R. § 4.59. The United States Court of Appeals for Veterans Claims (the Court) has determined that the final sentence of 38 C.F.R. § 4.59 requires that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158 (2017). Accordingly, a new VA examination is necessary that includes range of motion testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Additionally, in Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the Court clarified that the “critical question in assessing an examination not conducted during a flare is whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” This requires obtaining information about the severity, frequency, duration, precipitating and alleviating factors and extent of functional impairment of flares from the veterans themselves. The Court further noted that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare-i.e., the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner. During the August 2015 VA examination, the Veteran endorsed flare-ups of the left knee when it rained and after eating certain foods. She also described increased pain when she walked for longer than 20 minutes without NSAIDS. Despite the suggestion that the Veteran’s range of motion may have been further restricted during flare-ups, the examiner concluded he was unable to state, without resorting to speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because the Veteran was not observed during a flare-up. As such, additional findings regarding function loss should be addressed in the examination. Thus, remand for an additional VA examination that complies with 38 C.F.R. § 4.59 and the findings in Correia and Sharp is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA medical examination to assess the orthopedic manifestations of his left knee disabilities. The Veteran’s electronic claims file must be made available for review prior to the examination and the examination report should reflect that such review was accomplished. All testing deemed necessary to rate the Veteran’s left knee disabilities under the criteria of the VA rating schedule must be conducted and the results reported in detail. Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing for the knees. Testing should be conducted, and results provided, for the opposite joint, unless the opposite joint is damaged. If the opposite joint is determined to be damaged, and no range of motion testing is conducted, this must be explained in the report. 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 explain why. The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. The examiner should express an opinion as to whether pain or other manifestations during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range-of-motion loss due to pain on repeated use or during flare-ups. If no estimate can be provided, the examiner should provide a sufficiently detailed explanation as to why. If the Veteran is not suffering from a flare-up of his left knee disabilities at the time of the examination, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means and to estimate the functional impact of any flare-ups in terms of range of motion on the basis of that information. A rationale for the opinions in the report must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and her representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.