Citation Nr: 21068116 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 12-33 212 DATE: November 9, 2021 REMANDED The issue of entitlement to an increased rating for a right knee disability is remanded. The issue of entitlement to an increased rating for a left knee disability is remanded. THE APPELLANT'S CONTENTIONS The appellant seeks increased ratings for the Veteran's service-connected right and left knee disabilities. In May 2015, the Veteran testified that his knees buckled, and that he had instability, discomfort, and shooting and dull pain. See May 2015 Board hearing transcript, pp. 6-7. He also testified that he had flareups once per week. Id., pp. 7-8. At the October 2015 VA examination, the Veteran reported that he had pain when standing or sitting too long; it was difficult and painful for him to walk up and down stairs; he was constantly afraid that his knees would buckle; and he had fallen due to his knees buckling. See October 2015 VA examination report. REASONS FOR REMAND The Veteran served on active duty in the Army from February 1983 to February 1993. He died in November 2017. The appellant is his surviving spouse, and she has been substituted for the Veteran for purposes of processing his claims pending at the time of his death. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, October 2017, and November 2020, these issues were remanded by the Board. The Veteran testified at a Board hearing in May 2015. A transcript is of record. The Veterans Law Judge (VLJ) who conducted the May 2015 Board hearing has since retired. VA regulations require that the VLJ who conducts a hearing shall participate in making the final determination of the claim. In August 2021, the appellant was notified of this requirement and offered the opportunity to request a new hearing. No response was received. Accordingly, the Board will proceed in addressing this appeal. The Veteran underwent VA examinations of his bilateral knees in November 2010 and October 2015. In the October 2017 Board remand, the Board determined that the October 2015 VA examination did not comply with the holding of Correia v. McDonald, 28 Vet. App. 158, 166 (2016). Accordingly, the Board remanded the Veteran's increased rating claims to obtain a VA examination which assessed range of motion on both active and passive motion, and in weight-bearing and nonweight-bearing in compliance with the holding of Correia v. McDonald, 28 Vet. App. 158, 166 (2016). Unfortunately, the Veteran died prior to undergoing the requested examination. The claims were remanded again in November 2020. The Board finds that a retrospective medical opinion regarding the Veteran's right and left knee conditions prior to his death is warranted to substantially comply with the October 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Forward a copy of this remand to a qualified examiner for the purpose of obtaining an opinion (based on file review only) regarding the adequacy of the right and left knee range of motion (ROM) testing conducted on prior physical examinations. a.) On the VA examinations in October 2010 and October 2015, ROM was not tested on passive ROM and in weight-bearing/nonweight-bearing conditions. Please state whether range of motion testing in such conditions was required to adequately assess the Veteran's pain on motion. Please explain why or why not. b.) Please state whether there was any structural abnormality of the involved joint (that is to say, whether normal excursion of the joint is impaired/not possible). If there was a structural abnormality of the joint, does that abnormality impact the joint such that passive range of motion would have been more limited than active range of motion? c.) Please explain whether testing in weight-bearing conditions would have been more demonstrative of the degree of pathology in the Veteran's case, or whether testing in nonweight-bearing conditions would better demonstrate the severity of the disability. d.) The examiner should also attempt to provide retrospective assessments of what the likely ranges of motion would have measured on each prior examination, had ROM been tested in (1) passive motion, (2) in weight-bearing, and (3) in non-weight-bearing. If this assessment is not feasible, please clearly explain why that is so. A rationale for all opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.