Citation Nr: 21070200 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 14-11 605 DATE: November 23, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the right knee with dystrophic calcification of the inferior patella is remanded. Entitlement to an initial disability rating in excess of 10 percent for right knee instability is remanded. Entitlement to an initial compensable rating for a residuals of a healed right tibia/fibula fracture is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2006 to January 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2012 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A July 2020 Board decision denied increased ratings for the right knee patellofemoral syndrome with dystrophic calcification of the inferior patella, right knee instability and residuals of a healed fracture of the right tibia/fibula. The Veteran appealed that decision to the United States Court of Appeal for Veterans Claims (Court). By a July 2021 Order, the Court vacated and remanded these issues to the Board pursuant to the terms of a July 2021 Joint Motion for Partial Remand. During the pendency of this appeal, service connection for claw toe and pes planus was granted by an April 2021 Board decision, thereby constituting a full grant of the benefits sought on appeal and thus, this issue is no longer in appellate status before the Board. Patellofemoral Syndrome of the Right Knee with Dystrophic Calcification of the Inferior Patella, Right Knee Instability, and Residuals of a Healed Right Tibia/Fibula Fracture The July 2021 Joint Motion for Partial Remand concluded that the July 2020 Board decision relied on inadequate VA examinations in denying the claims for increased ratings for patellofemoral syndrome of the right knee with dystrophic calcification of the inferior patella, right knee instability and residuals of a healed right tibia/fibula fracture. The Court pointed out that the November 2019 VA examinations, which the Board relied upon, were inadequate because the VA examiner noted pain with weightbearing and passive motion, but did not indicate where pain began with range of motion in the right knee. Therefore, the Court found that a remand for a new VA examination with respect to the issue for patellofemoral syndrome of the right knee with dystrophic calcification of the inferior patella was necessary for compliance with the Board's January 2019 remand instructions. In addition, the July 2021 Joint Motion for Partial Remand observed that, although the service treatment records (STRs) demonstrated the right tibia/fibula fracture affected the ankle, the November 2019 VA examination did not test for right ankle pain. The Joint Motion found that a remand was necessary for the Board to address whether there was substantial compliance with its January 2019 remand. In light of the above, the Board finds that a remand for a new VA examination which complies with Correia v. McDonald and Sharp v. Shulkin, to assess the current nature and severity of his service-connected right knee and right tibia/fibula disabilities is necessary to adequately address the deficiencies pointed out in the Joint Motion for Partial Remand. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995); Correia v. McDonald, 28 Vet. App. 158 (2016); and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies. 2. Upon receipt of all additional records, schedule the Veteran for a VA examination of his right knee. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The evaluation of the right knee should consist of all necessary testing. The examiner is asked to specifically address the following: (a). Please 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). (b). Please estimate where PAIN BEGINS during range of motion with active motion, passive motion, observed repetitive motion, repetitive motion over time and flare ups. 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). (c). 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. 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). (d). Please discuss whether pain or other symptoms are present in the RIGHT ANKLE associated with the right tibia/fibula. (e). Additionally, the examiner must also consider the Veteran's lay statements pertaining to functional impairment. (f). To the extent possible, the examiner should identify any functional effects and functional impairment of the Veteran's right knee on his occupational functioning, daily life, and ordinary activities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 3. Determine whether a separate VA examination for the right ankle is necessary to assess the symptoms of residuals of a healed fracture of the right tibia/fibula, and if so, please schedule such an examination for the right ankle. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.