Citation Nr: 21004357 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 18-09 047 DATE: January 26, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee limitation of flexion is remanded. REASONS FOR REMAND On August 23, 2017, 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), was signed into law. This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran served on active duty in the United States Airforce from June 1975 to October 1994. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s increased rating claim for his left knee disability was initially addressed in a January 2016 rating decision. Following submission of his notice of disagreement, the Veteran opted into the AMA review system by submitting a Rapid Appeals Modernization Program (RAMP) election form, selecting the supplemental claim lane. In accordance with the provisions of AMA, the RO issued a RAMP decision in June 2018. In September 2018, the Veteran timely appealed this RAMP rating decision to the Board and requested the evidence submission review lane. In November 2019, the Board denied the Veteran’s claim for entitlement to a disability rating in excess of 10 percent for left knee limitation of flexion, granted a separate 10 percent rating for left knee limitation of extension, and granted a separate 20 percent rating for left knee semilunar cartilage. The Veteran appealed this decision to United States Court of Appeals for Veterans Claims (Court). In September 2020, the parties filed a Joint Motion for Partial Remand (JMPR), which the Court granted in an Order that same month, partially vacating the Board's decision to the extent it had denied the Veteran’s claim for a disability rating in excess of 10 percent for left knee limitation of flexion, notwithstanding the other grants. The Court remanded the claim to the Board for further development and re-adjudication in compliance with directives specified. To comply with the Court-granted JMPR, the Board, in turn, is remanding this claim for additional development. The September 2020 JMPR agreed the Board's November 2019 denial of this claim had relied on inadequate October 2013, August 2014, and November 2015 VA examinations. Specifically, the JMPR agreed that these examinations were inadequate because the examiners failed to measure the range of motion of the Veteran's knees for passive motion or for weight-bearing motion and, thus, the examination did not comply with the requirements set forth in 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), the Court held that the testing described in § 4.59 is required for an adequate examination, when this testing is possible. In this regard, it important to note that at the time these examinations where done, this Court case did not exist. Additionally, the JMPR agreed that the November 2015 is also inadequate because it does not indicate the range of motion when pain began, although the examiner noted objective pain that caused functional loss during flexion. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The JMPR also agreed that the August 2014 and November 2015 VA examinations failed to provide a sufficient description of the functional loss of the Veteran's knees due to flare-ups and failed to adequately explain why an opinion regarding functional loss could not be stated without resorting to mere speculation. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); DeLuca, 8 Vet. App. at 206. Thus, pursuant to the JMPR, the Board finds that the October 2013, August 2014, and November 2015 VA examinations were not adequate and that a remand is required to obtain an addendum medical opinion addressing the deficiencies in these examinations. See 38 U.S.C. § 5103(a); Barr v. Nicholson, 21 Vet. App. 31 (once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one). This matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to reassess the severity of his service-connected left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must test the Veteran's active motion, passive motion, and assess whether there is pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and repeated use over time based on the other evidence of record and the Veteran's statements. If the requested opinions and measurements cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.