Citation Nr: 21066384 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-31 429 DATE: October 29, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a left knee disability, to include patellofemoral pain syndrome with non-ossifying fibroma. REASONS FOR REMAND The Veteran served on active duty from February 2008 to November 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a Board hearing in November 2018. The Board remanded this matter in April 2019 and June 2021 for additional development. The matter is now returned to the Board for further appellate review. A remand by the Board confers upon a claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the June 2021 remand, the Board requested the agency of original jurisdiction (AOJ) obtain an opinion to determine the severity of the Veteran's service-connected left knee disability and ensure it included left knee range of motion testing in both active and passive motion and in weight-bearing and nonweight-bearing in accordance with the holding in Correia v. McDonald, 28 Vet. App.158 (2016). In Correia, 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." VA provided the Veteran an examination in July 2021. The examiner reported the Veteran experiences pain on active, passive, weight-bearing, and nonweight-bearing; however, the examination does not contain corresponding range of motion measurements for weight-bearing and nonweight-bearing or an explanation why such measurements were not provided. Accordingly, a remand is necessary to obtain an examination that complies with the Board's June 2021 remand directives. Moreover, the examination report contains inconsistencies which the Board cannot reconcile. For instance, the examiner indicated in one portion of the examination report that the Veteran exhibited pain on passive range of motion in both flexion and extension; however, later in the same section, the examiner is asked to check a box to indicate if there was evidence of pain on passive motion, and the examiner did not check this box, indicating that there was no pain on passive motion. Additionally, the July 2021 examination report states that the Veteran does not report a history of instability or recurrent subluxation of the knee, but this is inconsistent with other evidence of record, to include the Veteran's testimony at his Board hearing in November 2018 where he indicated the instability in his knee causes his knee to "want to go backwards." This is also inconsistent with the Veteran's report at the July 2021 examination that during flare-ups, the left knee gives out with sharp pain. Finally, it is also not consistent with the evidence that shows the Veteran's wears a knee brace unless there is medical evidence showing the brace is not for any knee instability. The Veteran's left knee disability is rated 10 percent disabling under Diagnostic Code (DC) 5260, limitation of flexion. VA provided the Veteran an examination in July 2021 that suggests a separate rating under DC 5261, limitation of extension, may be warranted. The VA rating schedule, and its prohibition against pyramiding, does not prohibit the Veteran from receiving simultaneous ratings for limitation of flexion and extension if compensable range of motion loss has been shown for both. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court of Appeals for Veterans Claims (Court) held that, as a matter of law, separate ratings are not precluded for limitation of motion (DCs 5003, 5260 and 5261), meniscal disability (DCs 5258 and 5259), and instability (DC 5257). During the July 2021 examination, the examiner reported the Veteran experiences left knee pain during extension, which suggests a separate rating under DC 5261 may be warranted. The examination; however, does not contain the degrees at which the Veteran experienced pain during left knee extension. Accordingly, a remand is necessary to obtain an opinion with sufficient range of motion measurements to determine if the Veteran's left knee pain during extension warrants a compensable rating and therefore, a separate rating under DC 5261. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current functional impairment of his left knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all left knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, and in weight-bearing and non-weight bearing. The examiner must render specific findings and describe any pain, weakened movement, excess fatigability, instability of station, and incoordination. If pain on motion is observed on extension or flexion, the examiner should indicate the point at which pain begins in extension or flexion. 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 state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on the next page) Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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). All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.