Citation Nr: 21068398 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-10 225 DATE: November 10, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for right knee medial meniscus tear associated with residuals of torn ligament with internal derangement and arthritis, left knee (right knee medial meniscus tear) is remanded. Entitlement to a rating in excess of 10 percent for right knee limitation of extension is remanded. Entitlement to a rating in excess of 30 percent prior to March 31, 2015, for residuals of torn ligament with internal derangement and arthritis, left knee (left knee residuals of torn ligament) is remanded. Entitlement to a rating in excess of 10 percent prior to March 31, 2015, for instability, left knee associated with residuals of torn ligament with internal derangement and arthritis, left knee (left knee instability) is remanded. Entitlement to a rating in excess of 10 percent prior to March 31, 2015, for arthritis with painful motion of the left knee (left knee arthritis) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010, June 2012, May 2015, and July 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2017. A transcript of the hearing is of record. The Board remanded this matter in November 2017 and December 2019. In a September 2020 decision, the Board, pertinently, denied these claims. The Veteran appealed the Board's September 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, the Court vacated, in part, the September 2020 Board decision, and remanded the issues stated above to the Board for further development. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis, entitlement to a rating in excess of 10 percent for right knee medial meniscus tear associated with residuals of torn ligament with internal derangement and arthritis, left knee (right knee medial meniscus tear), entitlement to a rating in excess of 10 percent for right knee limitation of extension, entitlement to a rating in excess of 30 percent prior to March 31, 2015, for residuals of torn ligament with internal derangement and arthritis, left knee (left knee residuals of torn ligament), entitlement to a rating in excess of 10 percent prior to March 31, 2015, for instability, left knee associated with residuals of torn ligament with internal derangement and arthritis, left knee (left knee instability), and entitlement to a rating in excess of 10 percent prior to March 31, 2015, for arthritis with painful motion of the left knee (left knee arthritis) are remanded. In the June 2021 Court Order, the Court determined that the Board failed to provide adequate reasons and bases. Specifically, the Court found that the Board failed to discuss the applicability of a separate rating under Diagnostic Code 5259. The Board also failed to consider the Veteran's statements which described significant instability. Finally, the Board erroneously relied on the April 2010 and May 2011 VA examinations, which did not address range of motion during flare ups or Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), as well as the February 2018 and January 2020 VA examinations, which addressed Correia, but did not include results of range of motion testing on active and passive motion, and in weight bearing and non-weight bearing positions. The Court directed that the Board ensure a new VA examination is provided which complied with Correia, as well as provided a retroactive opinion to address prior deficiencies in the April 2010, May 2011, February 2018, and January 2020 VA examinations. The Board is bound by these findings by the Court. Therefore, on remand, a VA examination and retroactive VA opinion must be obtained to determine the nature and severity of the Veteran's bilateral knee disabilities. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and severity of the Veteran's bilateral knee disabilities. The claims file and a copy of this remand must be made available for review. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the bilateral knee disabilities and discuss the effect of the Veteran's bilateral knee disabilities on any occupational functioning and activities of daily living. A clear rationale must be provided for all opinions expressed. The examiner should consider the Veteran's lay statements regarding symptoms of his bilateral knee disabilities when making an opinion. The examiner must also provide a retroactive opinion of the severity of the Veteran's bilateral knee disabilities following a review of the April 2010, May 2011, February 2018, and January 2020 VA examinations. Included in this retroactive opinion the examiner must provide range of motion testing during flare ups as well as range of motion testing on both active and passive motion, in weight-bearing and non-weight bearing, and, if possible, with the range of the opposite undamaged joint. (Continued on the next page) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, 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). 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Saudiee 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.