Citation Nr: 21004209 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 11-00 598 DATE: January 26, 2021 REMANDED Entitlement to an increased rating for a status post total right knee replacement in excess of 10 percent disabling prior to December 12, 2012 and from February 1, 2013 to April 8, 2014, and 30 percent disabling since June 1, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1975 to November 1975 and from October 1979 to December 1992. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The undersigned held a videoconference hearing with the Veteran in December 2015. A transcript of the hearing is in the file. The Board remanded the case in April 2018 and February 2020 for VA examinations that comply with Correia v. McDonald, 28 Vet. App.158 (2016). Entitlement to an increased rating for a status post total right knee replacement in excess of 10 percent disabling prior to December 12, 2012 and from February 1, 2013 to April 8, 2014, and 30 percent disabling since June 1, 2015 is remanded. While the Board sincerely regrets further delay, a fully-informed decision on the issue of entitlement to an increased rating for status post total right knee replacement can not be made because there has not been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In reviewing the adequacy of the existing VA examination reports, certain range of motion testing must be conducted whenever possible in cases of joint disabilities. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). “[T]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia, 28 Vet. App. 158. An additional relevant opinion pertaining to flare-ups was also issued by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Also, the VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board found that the August 2019 VA examination does not comply with DeLuca, and remanded for a new examination in February 2020. However, the new VA examination conducted in September 2020 also does not comply with DeLuca. The examiner was instructed to indicate the degree at which pain occurs for range of motion testing. Although objective evidence of pain was noted for active, passive, weightbearing, and non weightbearing range of motion, there are no indications of the degree at which pain occurs. Additionally, pain is noted on repetitive use testing, indicating a decrease in range of motion, but it is unclear at which degree pain begins. As such, a remand is necessary to afford the Veteran another VA examination for his service-connected right knee disability. The matters are REMANDED for the following action: 1. Schedule a new examination to evaluate the severity of the Veteran’s service-connected right knee disability. The claims folder must be made available to and reviewed by the examiner. The examiner should note in the examination report that the claims folder has been reviewed. All indicated studies, including x-rays should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, AND at what degree of motion he demonstrates such objective evidence (e.g., 0 to 130 degrees with pain at 115 degrees). The examiner should record the results of range of motion testing for pain on active motion, passive motion, weight-bearing, and non-weight-bearing in light of Correia. 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. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Papacalos, Law Clerk 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.