Citation Nr: 21068098 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 06-18 530 DATE: November 9, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for low back disability is remanded. Entitlement to a disability rating in excess of 10 percent for residuals of a right knee medial meniscectomy with post traumatic arthritis (right knee disability) prior to July 14, 2014 is remanded. Entitlement to a disability rating in excess of 20 percent for right knee disability since July 14, 2014 is remanded. REASONS FOR REMAND The Veteran served in the United States Air Force on active duty from June 1969 to November 1990. The issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Claims for entitlement to increased ratings for low back disability and right knee disability are remanded. In July 2020, the Board denied the Veteran's claims of entitlement to increased disability ratings for low back disability and right knee disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Partial Remand (JMPR). The Court found the Board failed to provide adequate reasons and bases for its denial of the Veteran's increased rating claims regarding the Veteran's low back disability and right knee disability. Specifically, the parties agreed that the Board failed to meet the duty to assist to provide medical examinations that addressed the Veteran's functional impairment experienced during flare-ups in accordance with the findings of Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2007); or that provided the appropriate range of motion testing and associated functional impairment on both passive and active motion and weighted and non-weight bearing testing, as held in Correia v. McDonald, 28 Vet. App. 158, 163 (2016). Further, the Court found that a remand was required, as the VA examinations did not substantially comply with the Board's October 2016 remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the parties to the JMPR agreed the Board failed to address the Veteran's complaints of a history of right knee instability and whether those statements raised entitlement to a separate disability rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. Pursuant to the JMPR, the Court vacated and remanded the matters to the Board. Accordingly, remand is required to provide the Veteran with every possible consideration in accordance with the Court's Order. Further development is necessary prior to appellate review to provide the Veteran with adequate VA examinations addressing the Veteran's low back disability and right knee disability in compliance with the Court's holdings in Sharp and Correia. Additionally, remand is required to provide the Veteran an up-to-date examination addressing the Veteran's complaints of right knee joint instability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the severity of his service-connected low back disability. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should be given access to the entire claims file and should note review of it prior to issuing an opinion. All indicated tests and studies should be performed. a) 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 or repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's service-connected low back disability and discuss the effect 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 or with repeated use over time, with consideration of 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). b) After examining the Veteran, evaluating the current nature and severity of his service-connected low back disability, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 2. Schedule the Veteran for a VA examination to assess the severity of his service-connected right knee disability. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should be given access to the entire claims file and should note review of it prior to issuing an opinion. All indicated tests and studies should be performed. a) 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 or repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's service-connected right knee and discuss the effect 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 or with repeated use over time, with consideration of 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). b) After examining the Veteran, evaluating the current nature and severity of his service-connected right knee disability, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. c) For the purpose of this examination and assessment of the Veteran's right knee disability, the examiner must address the Veteran's complaints of right knee joint instability, noted in the July 2014 VA examination and May 2013 treatment record. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.