Citation Nr: 20044536 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 15-09 171 DATE: July 2, 2020 REMANDED Entitlement to a rating in excess of 10 percent for right knee internal derangement is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988, to March 1992, during the Gulf War Era and Peacetime. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Board denied this claim in a January 2019 decision and remanded a claim for a low back disability for further development. An April 2020 rating decision granted the Veteran's claim for service connection for lumbar spine degenerative arthritis with spinal fusion and stenosis assigned an initial rating. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). A December 2019 Joint Motion for Partial Remand (JMPR) was filed to vacate the portion of a January 2019 Board decision that denied entitlement to a disability rating in excess of 10 percent for a right knee internal derangement, and to remand for further development. A January 2020 United States Court of Appeals for Veterans Claims (Court) decision remanded the matter identified in the JMPR, pursuant to 38 U.S.C. § 7252(a), for action consistent with the terms of the joint motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006); Stegall v. West, 11 Vet. App. 268, 271 (1998). The parties agreed that vacatur and remand of the issue of a disability rating in excess of 10 percent for a right knee internal derangement was warranted because the Board erred when it failed to ensure its duty to assist was satisfied by relying on an August 2013 VA examination that was not compliant with the Court’s holdings in Correia, and was, therefore, inadequate. See Correia v. McDonald, 28 Vet. App. 158, 169 70 (2016) (holding that that “to be adequate, a VA examination of the joints must, wherever possible, include the results of range of motion testing” for active range of motion (ROM), passive ROM, weight bearing ROM, and non weight bearing ROM). Entitlement to rating in excess of 10 percent for a right knee internal derangement. The Veteran contends that the August 2013 VA examination of his knees was inadequate because it was too remote, and he was not provided with a contemporaneous examination. He further contends that the August 2013 VA examination was inadequate as it did not contain painful motion testing, weight bearing and non weight bearing or active/passive range of motion testing. Further, the Veteran contends that the examiner did not provide a statement as to why testing could not be performed. In light of the Veteran’s contentions and the terms of the December 2019 JMPR, the Board concludes that the matter must be remanded. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify 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, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination to assist in determining severity of service-connected right knee internal derangement. The examiner must review the record and should note that review in the report. A complete rationale for all opinions should be provided. The examiner should identify the current nature and severity of all manifestations of the Veteran's right knee internal derangement. The examiner should record the range of motion of the right knee observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on 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. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. If the Veteran endorses experiencing flare-ups of his right knee, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner also should comment upon the functional impairment resulting from the Veteran's right knee disability. A rationale should be provided for any opinion offered. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. A. Flynn, 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.