Citation Nr: 21062046 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-04 800 DATE: October 6, 2021 REMANDED Entitlement to an evaluation of 20 percent for right knee residuals, status post arthroscopic surgery, with osteoarthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 2002 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran provided testimony at a Board hearing before the undersigned Veterans' Law Judge. A transcript of the hearing is of record. Entitlement to an evaluation of 20 percent for right knee residuals, status post arthroscopic surgery, with osteoarthritis is remanded. The Veteran contends that he is entitled to a 20 percent rating for his service-connected right knee disability. Here, essentially the evidence of record reflects that a February 2012 examination report revealed a flexion of 110 degrees and an extension of 0 degrees. The March 2013 examination reported an initial range of motion (ROM) and post-test ROM of flexion of 140 degrees with no objective evidence of painful motion and an extension of 0 degrees with no objective evidence of painful motion. In his December 2013 Notice of Disagreement (NOD), the Veteran stated that the RO was not measured with any device and the examiner forced the leg through ROM examination to achieve flexion. The February 2020 examination report revealed a flexion of 100 degrees and an extension of 0 degrees. The March 2021 examination revealed a flexion of 90 degrees and an extension of 0 degrees. As a preliminary matter, the Board notes that since the issuance of the last supplemental statement of the case (SSOC) in May 2021, updated VA medical center (VAMC) treatment records have been associated with the claims file. As such, remand is necessary for the RO to review such records. In a February 2012 statement, the Veteran said that VA has all knee treatment records since 2008, he takes alternative medicine and must wear a VA supplied knee brace while doing any type of exercise and even in the workplace. His wife said that his knee is known to give out randomly, with an audible loud pop and an accompanied weakness and he will lose all ability for it to bear weight for undefined amounts of time. The matter was first remanded by the Board in June 2019 for further development. In December 2020 the Board remanded the issue to obtain an adequate examination, including specifically noting in the reasons for remand rection to address the features and severity of the right knee disability from September 28, 2010, one year prior to the date of the claim for an increased rating. For the reasons noted below, the Board finds that remand is warranted. Notably, as discussed in the December 2020 Board remand, in a June 2020 statement, the Veteran said that his right knee cannot bear weight fifteen to twenty days a month, for thirty minutes to two hours after exiting bed. He contended that as his knee cannot straighten all the way, it should be rated under Diagnostic Code (DC) 5261, instead of flexion under DC 5260. The Veteran underwent an in-person VA examination in March 2021. The examiner diagnosed the Veteran with knee meniscal tear, knee joint osteoarthritis. This time, the examiner noted that the Veteran reported experiencing flare-ups described as occurring one to two times monthly, of mild to moderate severity, lasting one to six hours, which are precipitated by exercising, existing, standing up, and sitting down. Although the examination was not conducted during a flare-up, the examination results suggest that pain and lack of endurance significantly limit functional ability, with an estimated range of motion during flare-ups of flexion of 90 degrees and an extension of 10 degrees. The examiner indicated that the Veteran does not use assistive devices. However, such is in conflict with the Veteran's February 2012 statement above. Further, the Board notes that although the examiner found passive ROM to be the same as active ROM, the opposite joint was tested and there was evidence of pain with weight-bearing, on active motion and on rest/non-movement, the report does not leave the Board certain of whether the Veteran was tested for pain on non-weight-bearing, as the report only indicates that the box on the examination questionnaire is unchecked. There are no further remarks on the issue. The Board directed that the examiner must state for each motion measured whether the motion is painful and if so, at what point in the arc of motion pain sets in, and whether the pain inhibits further motion. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Paramount, the December 2020 Board remand expressed that the examiner should address the features and severity of the right knee disability from September 28, 2010, one year prior to the date of the claim for an increased rating, in other words provide a retrospective opinion from such date. However, such opinion was not obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, remand is required to obtain adequate an adequate examination and the retrospective opinion requested. The matters are REMANDED for the following action: 1. Forward the claims file to the examiner that performed the March 2021 examination of the right knee. The examiner is asked to provide an addendum opinion addressing the following. (a) The examiner is asked to address whether range of motion (both flexion and extension) testing on non-weight-bearing was performed, state whether the motion is painful and if so, at what point in the arc of motion pain sets in, and whether the pain inhibits further motion. (b) Second, the examiner is asked to address the features and severity of the right knee disability from September 28, 2010, which is one year prior to the date of the Veteran's increased rating claim, including addressing whether the Veteran used a knee brace at any time during the period on appeal. See 38 C.F.R. § 3.400, 3.400(o)(2). If the March 2021 examiner is unavailable, schedule the Veteran for a VA examination which addresses the nature and severity of his right knee disability. The examination should be performed by a clinician who has not examined the Veteran before. The examiner must review the Veteran's claims file and note that review in the report. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner must address the features and severity of the right knee disability from September 28, 2010, which is one year prior to the date of his increased rating claim. See 38 C.F.R. § 3.400, 3.400(o)(2). The examiner must elicit from the Veteran an account of his perceived symptoms of, and functional loss due to, the right knee disability. A detailed summary of the Veteran's account must be included in the examination report. The examiner must test right knee range of motion (both flexion and extension) on active motion and passive motion and must test right knee pain with weight-bearing and without weight-bearing. The examiner must certify that all range-of-motion measurements have been taken with a goniometer. The examiner must state for each motion measured whether the motion is painful and if so, at what point in the arc of motion pain sets in, and whether the pain inhibits further motion. The examiner must certify that all range-of-motion measurements have been taken with a goniometer. The examiner must attempt to elicit information from the Veteran about the severity, frequency, and duration of flareups of the right knee condition and estimate "per the veteran" the extent to which flareups have affected functional impairment. The examiner must identify the precipitating and alleviating factors for a flareup and discuss the effects on any occupational functioning and activities of daily living. A complete rationale for all opinions is required. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.