Citation Nr: 21068160 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 09-03 658A DATE: November 9, 2021 REMANDED Entitlement to an initial evaluation in excess of 20 percent for lumbosacral strain is remanded. Entitlement to a rating in excess of 10 percent for residuals of arthroscopic meniscectomy of the right knee based on limitation of flexion is remanded. Entitlement to an initial compensable rating for residuals of arthroscopic meniscectomy of the right knee based on limitation of extension is remanded. Entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to July 1970 and from February 2003 to January 2006. He had subsequent periods of active duty for training and inactive duty training. This matter comes before the Board on appeal from an April 2007 Regional Office (RO) rating decision. In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. 1. Entitlement to an initial evaluation in excess of 20 percent for lumbosacral strain is remanded. 2. Entitlement to a rating in excess of 10 percent for residuals of arthroscopic meniscectomy of the right knee based on limitation of flexion is remanded. 3. Entitlement to an initial compensable rating for residuals of arthroscopic meniscectomy of the right knee based on limitation of extension is remanded. 4. Entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. This claim was previously remanded in January 2021 so that the Veteran could undergo VA examinations that satisfied the requirements of recent caselaw. On remand, the Veteran underwent VA back conditions and knee and lower leg conditions examinations in June 2021. Unfortunately, neither of the resulting examination reports provides the point, in degrees, at which the Veteran's pain began on motion. The Veteran's accredited representative noted this deficiency with respect to the back claim in an August 2021 Informal Hearing Presentation. The Board notes that the right knee examination report contains the same deficiency. A remand is required so that the Veteran may undergo new examinations to determine the degree at which pain begins on range of motion testing. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran's records were last obtained. 2. Afford the Veteran a VA examination to determine the current severity of his back and right knee disabilities. The Veteran should be interviewed, and all indicated tests and studies should be accomplished. All findings should be reported in detail. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should identify and completely describe all current symptomatology. (a) Pursuant to Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the examiner should specifically state range of motion findings. The examiner must note whether the Veteran demonstrates objective evidence of pain on motion and, if so, at what degree of motion he demonstrates such objective evidence (e.g., 0 to 130 degrees with pain at 115 degrees). (b) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range of motion (1) on BOTH active and passive motion AND (2) in weight-bearing and non-weight-bearing. The examiner should specifically describe range of motion in degrees. In addition, the examiner must note whether the Veteran demonstrates objective evidence of pain on motion and, if so, at what degree of motion he demonstrates such objective evidence (e.g., 0 to 130 degrees with pain at 115 degrees). If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment during flare-ups assessed in terms of the degree of additional range of motion loss. If the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth Jalley, 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.