Citation Nr: 21069790
Decision Date: 11/19/21	Archive Date: 11/19/21

DOCKET NO. 14-10 906A
DATE: November 19, 2021

REMANDED

A disability rating higher than 10 percent for a right knee disability, to include chondromalacia patella, status-post arthroscopy, is remanded.

REASONS FOR REMAND

The Veteran had active duty from June 1991 to December 1994.  

This matter is on appeal from a June 2011 rating decision, wherein the RO denied reopening the jaw claim and granted a 10 percent disability rating for the right knee (effective December 9, 2010).

The Veteran had a hearing before the undersigned Veterans Law Judge in October 2017.

This matter was previously before the Board in February 2018 and remanded for additional development.  In August 2020, the Board denied both claims.

In a July 2021 Joint Motion for Partial Remand, the parties did not challenge the denial of service connection for a jaw injury.  The parties, however, found that the Board had erred when it relied upon the inadequate October 2019 VA examination, because the VA examiner failed to record passive and nonweight-bearing range of motion testing or explain why such testing was not necessary or unable to be conducted.  

Entitlement to a disability rating higher than 10 percent for a right knee disability is remanded.

The July 2021 JMPR found that a remand was warranted for a new examination that records the results of passive and non-weight-bearing range of motion testing or explains why such testing is not necessary or unable to be conducted.  As such, a new VA examination that complies with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) is necessary.  

The matters are REMANDED for the following action:

1.  Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement 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).

In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements.  If it is not possible to provide a specific measurement 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).

2.  Perform any additional development deemed warranted.

 

 

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Lindio, Alexine

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.