Citation Nr: 21070496 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-38 004 DATE: November 24, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for status post arthroscopic partial lateral meniscectomy of the left knee under Diagnostic Codes 5257-5010 is remanded. Entitlement to a higher initial rating in excess of 30 percent for residuals of left knee partial meniscectomy (extension) associated with status post arthroscopic partial lateral meniscectomy left knee under Diagnostic Codes 5010-5261 is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from July 1999 to August 2007. This matter before the Board of Veterans' Appeals (Board) is on appeal from a March 2013 rating decision rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Agency of Original Jurisdiction (AOJ) has assigned a "staged" rating for the left knee disability under multiple diagnostic codes during the appeal period. See Fenderson v. West, 12Vet. App.119 (1999); Hart v. Mansfield, 21Vet. App.505 (2007). The Board has listed the separate ratings as separate issues for clarity purposes. This claim was previously before the Board in August 2020, at which time it was remanded for further development. 1. Entitlement to an initial rating in excess of 10 percent for status post arthroscopic partial lateral meniscectomy of the left knee under Diagnostic Codes 5257-5010 2. Entitlement to a higher initial rating in excess of 30 percent for residuals of left knee partial meniscectomy (extension) associated with status post arthroscopic partial lateral meniscectomy left knee under Diagnostic Codes 5010-5261 The Veteran's last VA examination for his service-connected knee disabilities was in May 2021. Prior to this examination, however, the Veteran was examined in October 2012 and April 2015, and information regarding range of motion in passive motion in weight-bearing and nonweight-bearing was not conducted. Consequently, the Board finds that it must remand the claim in order for a retroactive opinion with regards to whether the results of the October 2012 and May 2015 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Furthermore, the Veteran reported flare-ups in the October 2012, May 2015, and February 2021 VA examinations. The examiners, however, did not offer opinions on any further loss of range of motion. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court also noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. Id. at 10. The matters are REMANDED for the following action: Provide the Veteran with an addendum opinion from the May 2021 VA examiner as to whether the Veteran's range of motion results from the October 2012 and April 2015 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner's best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner is also asked to provide retroactive range of motion estimates based on the functional loss during flare-ups identified in the October 2012, April 2015, and February 2021 VA examinations. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. If the May 2021 VA examiner is unavailable to provide the requested opinion, please submit these questions to another appropriate examiner. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.