Citation Nr: 21001626 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 14-39 537 DATE: January 11, 2021 REMANDED Entitlement to disability rating in excess of 10 percent for left knee lateral meniscus tear and repair with arthritis disability is remanded. Entitlement to disability rating in excess of 10 percent for left knee instability as a residual of lateral meniscus tear and repair disability is remanded. REASONS FOR REMAND The Veteran served in the United States Army from July 1995 to December 2000. In a September 2019 decision (Board Decision) the Board of Veterans’ Appeals (Board) denied the Veteran’s claim for an increased disability rating for his (1) left knee lateral meniscus tear and repair with arthritis disability and (2) left knee instability as a residual of lateral meniscus tear and repair disability, both currently rated as 10 percent disabling. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC or Court). In August 2020 the Court granted the Parties’ Joint Motion for Partial Remand (JMPR), vacating the parts of the Board’s decision which denied these claims and remanded them back to the Board for further development and readjudication. To comply with the terms of the JMPR, the Board, in turn, is remanding these claims to the agency of original jurisdiction (AOJ) for additional evidentiary development and other action consistent with the JMPR. The September 2019 Board Decision also included a remand to the AOJ concerning other claims. As these remands do not constitute final decisions, they were not before CAVC. See Breeden v. Principi, 17 Vet. App. 475, 478 (2004) (“The Board’s remand does not represent a final decision over which this Court has jurisdiction.”). Therefore, they are not part of this Board decision. The Board acknowledges the October 2020 letter from the Veteran’s appointed attorney. The content of this letter is internally contradictory. However, to the extent that the attorney is attempting to withdraw representation, the Board finds that such withdrawal was not proper. It was received at the Board following certification of the appeal from the Court of Appeals for Veterans Claims. In addition, the attorney provided no good cause for withdrawing representation at this time. As such, to the extent that this was an attempt to withdraw representation, it does not comply with the provisions of 38 C.F.R. § 20.608 (b)(2). 1. Entitlement to increased ratings for left knee disabilities. In the JMPR, the Parties agreed that the Board erred by not ensuring that the Department of Veterans Affairs (VA) complied with its duty to assist the Veteran under the requirements of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c), to provide an examination that was adequate for rating purposes. The Parties agreed that remand of the Veteran’s claims is needed to obtain a new VA examination which complies with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016), as well as the Board’s June 2018 remand instructions. In it June 2018 remand decision, the Board found: The November 2010 and July 2014 left knee VA examinations did not address 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. As such, the examination is not compliant with [the] Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In light of the fact that these examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, the Veteran should be afforded a new VA examination for his left knee disability before a decision can be rendered on his claim. June 2018 Board decision, page 10. In response to the Board’s remand instructions, the Veteran was provided a new VA knee examination in April 2019 in which the VA examiner noted diagnoses of left knee meniscal tear and bilateral knee degenerative arthritis. The VA examiner performed initial range-of-motion testing for the left knee but did not perform repetitive-use testing for the left knee because the Veteran reported that the pain was too severe. The VA examiner noted that there was evidence of pain with weight-bearing for the left knee. The Parties agreed that the April 2019 VA examination was inadequate and did not comply with the June 2018 Board remand instructions because the VA examiner did not indicate that range-of-motion testing was done for active and passive motion and under weight-bearing and nonweight-bearing conditions, if possible, as required under Correia, 28 Vet. App. at 168-69. See, Stegall v. West, 11 Vet. App. 268, 271 (2010). Furthermore, while it noted that the April 2019 VA examination did not comply with the Court’s holding in Correia, the Board erred by implicitly finding that the April 2019 VA examination was adequate for rating purposes and that it substantially complied with the June 2018 remand instructions. See; Stegall, 11 Vet. App. at 271. Therefore, remand is warranted for the Board to obtain a new VA examination as to the current level of severity of the Veteran’s left knee disabilities, which complies with the Court’s holding in Correia. Pursuant to 38 U.S.C. § 7112, this matter is to be afforded expeditious treatment. The matters are REMANDED for the following action: 1. Provide the Veteran with a new VA knee examination related to the issues in this appeal. The examiner should address the following: (a.) The examiner should describe the nature and severity of all manifestations of the Veteran’s left knee disabilities. In this regard, the examiner should record the range of motion observed with findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing, repetitive-use testing, and, if possible, with range of motion measurements of the opposite joint, in accordance with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016), and 38 C.F.R. § 4.59. In reporting the results of range of motion testing, the examiner should identify and record any objective evidence of pain, and the degree of flexion and/or extension at which such pain begins, and the extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. If the examiner is unable to complete any of these requirements, he or she should explain why. The examiner must comment on the functional impairment caused by the Veteran’s left knee disabilities. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.