Citation Nr: 21002020 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-56 345 DATE: January 12, 2021 ORDER Entitlement to service connection for a right foot disorder, diagnosed as right great toe arthritis, is granted. Entitlement to service connection for a left foot disorder is granted. Entitlement to service connection for a left ankle disorder is granted. Entitlement to a compensable initial rating for right ear hearing loss prior to January 2, 2019 is denied. The reduction of the disability rating for degenerative joint disease (DJD) of the left knee with limited flexion from 10 percent to 0 percent, effective September 27, 2019, was not proper; the appeal is granted. REMANDED Entitlement to an initial rating greater than 10 percent for degenerative joint disease (DJD) of the left knee with limitation of flexion is remanded. Entitlement to an initial rating greater than 10 percent for left knee instability is remanded. Entitlement to an initial rating greater than 10 percent for painful and tender scar of the left knee is remanded. Entitlement to a compensable initial rating for surgical scar of the left knee is remanded. Entitlement to a compensable initial rating for limited extension of the left knee prior to September 27, 2019, a staged initial rating greater than 10 percent from September 27, 2019, and a staged initial rating greater than 30 percent from December 16, 2019 is remanded. Entitlement to an initial rating greater than 10 percent for DJD of the right knee prior to September 27, 2019 and a staged initial rating greater than 20 percent thereafter is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. FINDINGS OF FACT 1. With consideration of the benefit of the doubt, right great toe arthritis was caused by or incurred during the Veteran’s active duty service. 2. With consideration of the benefit of the doubt, a left foot disorder was caused by or incurred during the Veteran’s active duty service. 3. With consideration of the benefit of the doubt, a left ankle disorder was caused by or incurred during the Veteran’s active duty service. 4. Prior to January 2, 2019, the Veteran’s right ear hearing loss was manifested by no worse than Level I hearing acuity; service connection was not in effect for left ear hearing loss prior to January 2, 2019. 5. Service connection for left knee limitation of flexion was granted in an October 2017 rating decision, and a 10 percent disability rating was assigned, effective August 1, 2011. 6. A May 2020 rating decision awarded a separate increased rating of 10 percent for left knee limitation of extension, effective September 27, 2019, and a 30 percent rating, effective December 16, 2019. 7. The May 2020 rating decision did not award an increased rating for left knee limitation of flexion, continue the 10 percent disability rating for left knee limitation of flexion, or otherwise render a decision regarding left knee limitation of flexion. 8. The May 2020 rating decision did not contain clear and unmistakable error pertaining to the disability evaluation assigned for left knee DJD with limitation of flexion and it did not render a decision pertinent to that issue. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right great toe arthritis have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left foot disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a left ankle disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Prior to January 2, 2019, the criteria for a compensable disability rating for right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, Diagnostic Code 6100. 5. The criteria for restoration of a 10 percent disability rating for left knee DJD with limitation of flexion from September 27, 2019 have been met. 38 U.S.C. §§ 5107, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.343, 3.344, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1983 to May 1985. In August 2019, the Board issued a decision which, in pertinent part, denied entitlement to service connection for a right foot disorder, a left ankle disorder, and a left foot disorder. The August 2019 Board decision also reopened claims for entitlement to service connection for a low back disorder and a right foot disorder and remanded claims for entitlement to service connection for a low back disorder, entitlement to service connection for right and left hip disorders, entitlement to service connection for left lower extremity radiculopathy, entitlement to an increased rating for left knee degenerative joint disease with limitation of flexion, entitlement to an increased rating for left knee instability, entitlement toa n increased rating for left knee painful and tender scar, entitlement to an increased rating for right knee degenerative joint disease, entitlement to an increased rating for left knee limitation of extension, entitlement to an increased rating for left knee surgical scar, and entitlement to an increased rating for right ear hearing loss prior to January 2, 2019. The Veteran appealed that portion of the Board’s August 2019 decision denying service connection for a right foot disorder, a left ankle disorder, and a left foot disorder to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2020 Order, the Court granted a Joint Motion for Partial Remand, vacating the Board’s August 2019 decision with respect to entitlement to service connection for a right foot disorder, a left ankle disorder, and a left foot disorder, and remanding the matters to the Board for additional consideration. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. In July 2020, the Veteran filed a VA Form 10-182, Decision Review Request: Board Appeal for the claims of entitlement to an increased rating for left knee limitation of extension and entitlement to an increased rating for right knee degenerative joint disease. The Board notes that this opt-in to the AMA is invalid, as the Veteran’s appeal for these issues had already been certified to the Board and placed on its docket under the Legacy Appeals System. Accordingly, the appeal will continue under the Legacy Appeals System. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for a right foot disorder After thorough consideration of the evidence of record, the Board concludes that service connection is warranted for right great toe arthritis, as the weight of the probative evidence shows that the Veteran’s current right great toe arthritis is related to an in-service right great toe injury. The current medical evidence of record documents a finding of post-traumatic residual degenerative joint disease of the right big toe. See September 2016 private medical opinion of P.Y., D.C. Accordingly, a current right great toe disability is established. Additionally, the Veteran’s service treatment records document complaints of and treatment for a right great toe injury. In April 1984, the Veteran complained of a right great toe injury incurred while playing softball. While an X-ray was negative for right great toe fracture, the diagnoses were sprained right toe and right toe hyperflexion injury. Thus, there is evidence of an in-service injury or event. Last, the evidence is at least in equipoise as to whether the Veteran’s current right great toe disorder is related to his active duty service. In that regard, there are medical opinions both in favor of and against the Veteran’s claim. In a March 2012 VA opinion, the examiner opined that it was less likely than not that the Veteran’s right foot disorder was related to his in-service complaints of foot trouble because there was “no documented evidence of chronicity.” However, chronicity or continuity of symptomatology is not required to establish a nexus to service for purposes of service connection on a direct basis, and no other rationale was provided. Accordingly, the Board does not afford the March 2012 VA opinion significant probative value. In support of the claim, the Veteran submitted a September 2016 private medical opinion from P.Y., D.C. After reviewing the pertinent evidence of record and examining the Veteran, Dr. P.Y. diagnosed post-traumatic residual degenerative joint disease of the right big toe and opined that it is more likely than not that the disability is “directly and casually related” to the in-service injury. In light of the positive nexus opinion of record, the Board concludes that the weight of the probative evidence supports a finding that the Veteran’s current right great toe arthritis is related to his in-service right great toe injury. With the benefit of the doubt resolved in the Veteran’s favor, service connection for right great toe arthritis is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball forklore that ‘the tie goes to the runner’. [I]f the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). 2. Entitlement to service connection for a left foot disorder After thorough consideration of the evidence of record, the Board concludes that service connection is warranted for a left foot disorder, as the weight of the probative evidence shows that the Veteran’s current disability is related to an in-service injury. The current medical evidence of record documents diagnoses of left foot hammertoe deformity, contracture deformity of the metatarsal phalangeal joint, hallux limitus, capsulitis of the metatarsal phalangeal joint, and post-traumatic plantar fasciitis. See February 2011 private podiatry note and September 2016 private medical opinion of P.Y., D.C. Accordingly, a current left foot disability is established. Additionally, there is probative evidence of an in-service left foot injury. Although the Veteran’s service treatment records are silent for any complaints of or treatment for a left foot injury, the Veteran has provided numerous lay statements from family and fellow servicemembers who recall that the Veteran injured his left foot during service while playing softball. In lay statements received in January 2012, B.S. and M.L., who each served with the Veteran, reported observing the Veteran with a left foot injury following a softball tournament in 1984. M.L. noted that the Veteran complained of left foot pain and that he was treated with a wrap and splint, and a cast on the ankle. B.S. recalled that he was present with the Veteran in 1984 when he injured his left foot during a softball tournament and received care at a local military hospital. He explained that the Veteran was given crutches and a cast from his left knee to his foot. The Veteran’s mother and brother reported that the Veteran told them of a left foot injury which occurred during a softball game in service. As B.S., M.L., the Veteran’s mother, and his brother are each competent to report events that they witnessed, their statements are competent evidence. Additionally, the Board finds them to be probative, as they are consistent with one another and with the Veteran’s lay statements. Accordingly, there is competent and credible evidence of an in-service left foot injury. In addition, the weight of the probative medical evidence reflects that the Veteran’s left foot disorder is related to his in-service injury. In a September 2016 opinion, P.Y., D.C. opined that it was more likely than not that the Veteran’s left foot disorder is related to his active duty service. Dr. P.Y.’s opinion was based upon a review of the pertinent evidence in the claims file as well as the Veteran’s lay statements. While a March 2012 VA examiner concluded that the Veteran’s left foot disorder is not causally related to his active duty service, the examiner’s opinion was based solely upon the fact that the Veteran’s service treatment records did not document treatment for a left foot disorder during service. However, as discussed above, the Board has concluded that the competent and credible lay evidence of record establishes an in-service left foot injury. Because the March 2012 VA opinion did not consider or address this positive evidence in support of the Veteran’s claim, the Board does not afford the opinion significant probative value. The law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). Upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left foot disorder was caused by or incurred during his active duty service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for a left foot disorder is warranted. See Gilbert, 1 Vet. App. at 55 (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). 3. Entitlement to service connection for a left ankle disorder After thorough consideration of the evidence of record, the Board concludes that service connection is warranted for left ankle arthritis, as the weight of the probative evidence shows that the Veteran’s current left ankle toe arthritis is related to an in-service left ankle injury. The current medical evidence of record documents a diagnosis of post traumatic degenerative joint disease of the left ankle. See September 2016 private medical opinion of P.Y., D.C. Accordingly, a current left ankle disability is established. Additionally, the Veteran’s service treatment records document complaints of and treatment for a left ankle injury. Service treatment records dated in July 1984 reflect that the Veteran injured his left ankle while playing softball. The diagnosis was left ankle sprain and the Veteran was given crutches and a splint. Service treatment records dated later in July 1984 note a diagnosis of eversion injury to the left ankle with marked swelling and tenderness. X-rays were noted to be negative for fracture, and the diagnosis was left ankle sprain. Thus, there is evidence of an in-service left ankle injury. Last, the weight of the probative evidence relates the Veteran’s current left ankle disability to his in-service injury. In a September 2016 opinion, P.Y., D.C. opined that it was more likely than not that the Veteran’s current left ankle disorder is “directly and causally” related to his in-service injury. Dr. P.Y.’s opinion was based upon a review of the evidence in the claims file, as well as a physical examination and interview of the Veteran. While a July 2012 VA examiner opined that the Veteran’s current left ankle disorder was not related to service, the only rationale provided by the examiner was that there was no documentation of chronicity of the left ankle injury. As noted above, chronicity is not required to establish a nexus to service, and no other rationale was stated. Accordingly, the Board does not afford the July 2012 VA examination significant probative value. Upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left ankle disability was incurred in or caused by his active duty service. Accordingly, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for a left ankle disability is warranted. See Gilbert, 1 Vet. App. at 55. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The primary concern in a claim for a higher evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. Entitlement to a compensable initial rating for right ear hearing loss prior to January 2, 2019 Service connection for right ear hearing loss was granted in an October 2017 rating decision, and a noncompensable disability rating was assigned, effective January 4, 2012. The Veteran appealed the disability rating assigned for his right ear hearing loss and also the denial of a claim for service connection for left ear hearing loss. In an April 2019 rating decision, the agency of original jurisdiction (AOJ) granted service connection for left ear hearing loss and assigned a 10 percent disability rating for bilateral hearing loss, effective January 2, 2012. The Veteran then appealed the disability rating assigned for his bilateral hearing loss from January 2, 2019. The issue of entitlement to an increased rating for bilateral hearing loss from January 2, 2019 was addressed in a February 2020 Board decision. Accordingly, the only issue before the Board is the propriety of the noncompensable disability rating for right ear hearing loss prior to January 2, 2019. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85(h), Table VI and Table VII. Table VI correlates the average pure tone sensitivity threshold, derived from the sum of the 1000, 2000, 3000, and 4000 Hertz (Hz) thresholds divided by four, with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds in decibels and of speech discriminations in percentages. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hz is 55 decibels or more, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIa, whichever results in a higher number. Each ear is evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). A June 2012 private treatment record reflects that the Veteran underwent an audiogram at that time. The audiogram is not interpreted, but contains a graph of the audiometric results. The graph shows findings for each ear, one marked by an “X” and one marked by an “O.” However, the audiogram does not contain a key or otherwise indicate which mark represents the right ear hearing test results. Additionally, the June 2012 private audiogram does not contain results of controlled speech recognition testing using the Maryland CNC word list; accordingly, it is not adequate for rating purposes and will not be considered. 38 C.F.R. § 4.85(a). In July 2012, the Veteran underwent a VA audiological examination. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 25 55 The average puretone threshold for the relevant frequencies was 29. Speech audiometry revealed speech recognition ability of 100 percent in the right ear. The diagnosis was right ear sensorineural hearing loss. The examiner remarked that the Veteran’s right ear hearing loss resulted in difficulty hearing people speak, with particular trouble hearing people standing behind him or not looking at him. As noted above, the Veteran is only service-connected for hearing loss of the right ear prior to January 2, 2019. 38 C.F.R. § 4.85(f) provides that if impaired hearing is service-connected in only one ear, the nonservice-connected ear will be assigned a hearing impairment designation of I, subject to 38 C.F.R. § 3.383. Effective from December 6, 2002, 38 C.F.R. § 3.383 was amended to provide that where hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more and the hearing impairment in the other ear is considered a disability under § 3.385, the hearing impairment in the nonservice-connected ear will be considered in evaluating the service-connected disability. 69 Fed. Reg. 48148-50 (August 9, 2004) [codified as amended at 38 C.F.R. § 3.383(a)]. As discussed below, the hearing impairment in the Veteran’s right ear is not compensable prior to January 2, 2019. Accordingly, the hearing impairment in the nonservice-connected left ear is not for consideration in evaluating the service-connected disability, and a hearing impairment designation of I will be assigned for the nonservice-connected left ear hearing loss to determine the appropriate rating for right ear hearing loss prior to January 2, 2019. A puretone threshold average of 29 and a speech recognition score of 100 percent translates to Level I hearing impairment under Table VI. Level I hearing impairment in one ear with normal hearing in the other ear is considered noncompensably disabling. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) (finding the Board may only consider the specific factors as are enumerated in the applicable rating criteria). Additionally, the Veteran’s right ear hearing loss does not satisfy the “exceptional pattern” defined in 38 C.F.R. § 4.86. Thus, a compensable rating is not warranted for the Veteran’s right ear hearing loss prior to January 2, 2019. After review of the evidence of record, there is no evidence that would warrant a compensable rating for the Veteran’s right hearing loss during the rating period on appeal. 38 U.S.C. § 5110; see also Fenderson, 12 Vet. App. 119. While there have been day-to-day fluctuations in the manifestations of the Veteran’s hearing loss, the evidence shows no distinct periods of time during which the Veteran’s right ear hearing loss has varied to such an extent that staged ratings would be warranted. Cf. 38 C.F.R. § 3.344 (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). The Board is sympathetic to the Veteran’s complaints related to his hearing loss, but finds that there is no schedular basis for granting a compensable rating for right ear hearing loss prior to January 2, 2019. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Rating Reduction 5. Whether the reduction of the disability rating for DJD of the left knee with limited flexion from 10 percent to 0 percent, effective September 27, 2019, was proper Service connection for left knee DJD with limitation of flexion was awarded in an October 2017 rating decision, and an initial 10 percent disability rating was assigned effective August 11, 2011. The Veteran appealed the assigned initial rating, seeking a higher rating for left knee limitation of flexion greater than 10 percent. In a May 2020 rating decision, the AOJ awarded an increased rating of 10 percent for left knee limitation of extension, effective September 27, 2019, and an increased rating of 30 percent for left knee limitation of extension, effective December 16, 2019. In a September 2020 rating decision, the AOJ reduced the disability rating for left knee limitation of flexion from 10 percent to noncompensable, effective September 27, 2019, based upon a conclusion that there was clear and unmistakable error in the May 2020 rating decision. Thereafter, an October 2020 rating decision was issued, proposing to reduce the disability rating for left knee limitation of flexion from 10 percent to noncompensable, effective September 27, 2019, and a December 2020 rating decision effectuated the proposed reduction. The reduction of the Veteran’s disability rating in the December 2020 rating decision was based on the AOJ’s finding of clear and unmistakable error (CUE) in the May 2020 rating decision “for continuing the separate 10 percent evaluation for limitation of flexion motion based on the same painful motion symptom/ criteria that was used to assign a 10 percent evaluation for limitation of extension motion on September 27, 2019.” After thorough consideration of the evidence of record, the Board concludes that the AOJ’s December 2020 rating decision reducing the disability rating for left knee limitation of flexion from 10 percent to noncompensable, effective September 27, 2019, was improper. Accordingly, restoration of the 10 percent disability rating, effective September 27, 2019, is warranted. By operation of law, a previous rating decision by the AOJ is binding and will be accepted as correct in the absence of CUE. 38 C.F.R. §§ 3.104(a), 3.105(a). Generally, CUE is only applicable to final rating decisions. However, a Decision Review Officer can reverse or revise a prior decision of an AOJ, including the decision being reviewed (even if disadvantageous to the claimant), on the grounds of CUE. 38 C.F.R. § 3.2600(e). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. 313 (en banc). In the case at hand, the AOJ determined that there was CUE in the May 2020 rating decision because it continued a separate 10 percent evaluation for limitation of flexion motion based upon the same painful motion symptom/ criteria which was used to assign a 10 percent evaluation for limitation of extension motion on September 27, 2019. Initially, the Board observes that the May 2020 rating decision did not render any decision whatsoever pertaining to the Veteran’s left knee limitation of flexion disability rating. With regard to the left knee, the May 2020 rating decision awarded an increased disability rating of left knee limitation of extension from 0 percent to 10 percent, effective September 27, 2019 and a 30 percent evaluation, effective December 16, 2019. The May 2020 rating decision made no findings pertinent to left knee limitation of flexion, and did not state in any meaningful way a decision to continue a separate 10 percent disability rating for left knee limitation of flexion. Thus, because the May 2020 rating decision did not render a decision pertaining to left knee limitation of flexion, a finding of CUE in the May 2020 rating decision cannot serve to reduce the left knee limitation of flexion rating. Additionally, the December 2020 rating decision’s conclusion that the separate 10 percent disability rating for limitation of flexion was “based upon the same painful motion symptom/ criteria which was used to assign a 10 percent evaluation for limitation of extension motion” is incorrect. Review of the May 2020 rating decision reflects that the 10 percent disability rating for left knee limitation of extension was based upon medical evidence showing “[l]imitation of extension of 10 to 14 degrees . . . .” Although the October 2017 rating decision shows that the Veteran’s left knee limitation of flexion rating is based upon evidence of limited flexion with painful motion of the knee not otherwise compensable under the diagnostic code for limitation of flexion, the May 2020 rating decision reflects that the 10 percent left knee limitation of extension disability rating is based upon evidence of limited extension. Moreover, VA General Counsel has held that separate ratings are permissible for limitation of flexion and limitation of extension for a disability of the same joint. VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2004). Accordingly, because the May 2020 rating decision reflects that a compensable disability rating for left knee limitation of extension was based, in fact, on limitation of extension from 10 to 14 degrees, the Board cannot conclude that the separate 10 percent disability rating for limitation of extension was based upon the same symptoms as the 10 percent disability rating for limitation of flexion. Ultimately, the Board concludes that the evidence of record at the time of the May 2020 rating decision does not show clear and unmistakable error in the May 2020 rating decision. Accordingly, the reduction of the rating for left knee DJD with limited flexion from 10 percent to noncompensable was not proper and the 10 percent disability rating is restored, effective September 27, 2019. 38 C.F.R. §§ 3.105(a). REASONS FOR REMAND 1. Entitlement to an initial rating greater than 10 percent for DJD of the left knee with limitation of flexion; entitlement to a compensable initial rating for limited extension of the left knee prior to September 27, 2019, a staged initial rating greater than 10 percent from September 27, 2019, and a staged initial rating greater than 30 percent from December 16, 2019; and entitlement to an initial rating greater than 10 percent for DJD of the right knee prior to September 27, 2019 and a staged initial rating greater than 20 percent thereafter are remanded. A new VA examination is warranted to determine the current severity of the Veteran’s right and left knee disabilities. In Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. 28 Vet. App. 158. The final sentence of 38 C.F.R. § 4.59 provides that “[t]he joints involved should be tested for pain on both active and passive range of motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. Although the Veteran underwent a VA examination in December 2019, the examination report does not reflect compliance with Correia. Although the December 2019 VA examination noted that there was objective evidence of pain in both knees with passive range of motion and with non-weight bearing, only one set of range of motion results was provided and the examination does not indicate whether these results were from testing conducted in active motion, passive motion, weight-bearing, or nonweight-bearing. Accordingly, it does not satisfy the requirements of 38 C.F.R. § 4.59 as discussed in Correia. Also, the December 2019 VA examiner acknowledged that the Veteran experienced pain during range of motion testing in both knees which caused functional loss, but did not report the point at which pain began. Accordingly, a new VA examination is required. 2. Entitlement to an initial rating greater than 10 percent for left knee instability; entitlement to an initial rating greater than 10 percent for painful and tender scar of the left knee; and entitlement to a compensable initial rating for surgical scar of the left knee are remanded. In light of the above, the claims for entitlement to increased ratings for left knee instability, left knee painful and tender scar, and left knee surgical scar must also be remanded, as additional development, including obtaining a VA knees examination, may contain evidence pertinent to determining the proper ratings for these disabilities. Accordingly, they are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to service connection for a right hip disorder and entitlement to service connection for a left hip disorder are remanded. The Veteran’s claims for entitlement to service connection for right and left hip disabilities were remanded by the Board in August 2019 for additional development. Although that development appears to have been completed, and additional pertinent evidence associated with the claims file, the AOJ did not address these claims in its May 2020 Supplemental Statement of the Case (SSOC). Thus, the AOJ must conduct an initial review of the new evidence associated with the claims file since the October 2017 Statement of the Case to ensure that the Veteran is afforded due process. See 38 C.F.R. §§ 19.31, 19.37(b), 20.1304(c). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected right and left knee disorders. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s knee disabilities under the rating criteria. Range of motion of the knee joints should be reported in degrees, noting by comparison the normal range of motion. The examiner should also test and report the range of motion of each knee in active motion, passive motion, weight-bearing, and nonweight-bearing. If there is pain on range of motion, the examiner must state at which point pain began. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due the knee disabilities alone and discuss the effects of the Veteran’s disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Readjudicate the issues on appeal with consideration of all the evidence of record. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the issues to the Board, if otherwise in order. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.