Citation Nr: 21072953 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 13-31 120A DATE: December 7, 2021 REMANDED Entitlement to a rating in excess of 30 percent for right knee total arthroplasty from April 1, 2015 to April 19, 2018 is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee from November 24, 2010 to February 5, 2014 is remanded. Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1979 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In an April 2020 Board decision, the Board in part denied the claims for ratings in excess of 30 percent for right knee total arthroplasty from April 1, 2015 to April 19, 2018, a rating in excess of 10 percent for right knee DJD from November 24, 2010 to February 5, 2014, and a rating in excess of 10 percent for a left ankle disabilty. The Board also granted a separate 20 percent rating for right knee meniscal impairment knee from November 24, 2010 to February 5, 2014, and a 60 percent rating for right knee total arthroplasty from April 20, 2018 to May 27, 2019. The Veteran appealed Board's decision to the United States Court of Appeals for Veterans Claims (Court) and in the Court granted the Joint Motion for Partial Remand (JMPR) in June 2020. 1. Entitlement to a rating in excess of 30 percent for right knee total arthroplasty from April 1, 2015 to April 19, 2018 is remanded. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee from November 24, 2010 to February 5, 2014 is remanded. 3. Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. The Veteran essentially contends that his service-connected right knee and left ankle are more disabling than currently evaluated. Both parties to the JMPR argued successfully to the Court that the Board erred in its April 2020 decision by relying on a VA examinations dated in August 2011, January 2014, and April 2014, to adjudicate all of the Veteran's currently appealed claims. Both parties specifically argued that the VA examination reports were inadequate for VA adjudication purposes because it did not comply with the Court's decisions in Sharp and Correia. The Board notes that it is bound by the Court's June 2020 Order granting the Joint Motion. Additionally, both parties stipulated that the Board decision in April 2020 with regards to the award of a separate 20 percent rating for right knee meniscal impairment knee from November 24, 2010 to February 5, 2014, and a 60 percent rating for right knee total arthroplasty from April 20, 2018 were not being challenged and were therefore dismissed by the Court. Thus, the Board finds that, on remand, the AOJ should schedule the Veteran for appropriate examination to address the questions posed in the Joint Motion concerning the current nature and severity of the Veteran's service-connected right knee disability and his service-connected left ankle disability. These matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to evaluate the severity of the Veteran's right knee disability. The entire claims file should be made available to the examiner in conjunction with this request. All testing deemed necessary to rate the right knee under the criteria of the rating schedule must be conducted and the results reported in detail. Specifically, the examiner is asked to respond to the following: (a.) Perform both active and passive range of motion testing, range of motion testing of the opposite, undamaged knee, and pain on weightbearing and non-weightbearing testing. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. (b.) The examiner must describe the functional impairment from pain with movement of the right knee. If the examiner is unable to describe the functional impairment from pain with movement of the right knee, he or she should explain why. (c.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and an estimation of the loss of range of motion during flare-ups. 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 all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. (d.) Additionally, the examiner is asked to provide an opinion based on the entirety of the record as to the functional impairment from pain with movement of the right knee from November 24, 2010 to February 5, 2014, and from April 1, 2015 to April 19, 2018. The examiner must fully explain the rationale for any opinion as to the functional impairment from pain with movement of the right knee November 24, 2010 to February 5, 2014, and from April 1, 2015 to April 19, 2018 with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (e.) Lastly, the examiner is asked to provide an opinion based on the entirety of the record as to the severity, frequency, and duration of any flare-ups, and an estimation of the loss of range of motion during flare-ups from November 24, 2010 to February 5, 2014, and from April 1, 2015 to April 19, 2018. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment from November 24, 2010 to February 5, 2014, and from April 1, 2015 to April 19, 2018 without speculation, the examiner must state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. 2. Schedule the Veteran for an appropriate VA examination to evaluate the severity of the Veteran's left ankle disability. The entire claims file should be made available to the examiner in conjunction with this request. All testing deemed necessary to rate the left ankle under the criteria of the rating schedule must be conducted and the results reported in detail. Specifically, the examiner is asked to respond to the following: (a.) Perform both active and passive range of motion testing, range of motion testing of the opposite, undamaged ankle, and pain on weightbearing and non-weightbearing testing. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. (b.) The examiner must describe the functional impairment from pain with movement of the left ankle. If the examiner is unable to describe the functional impairment from pain with movement of the left ankle, he or she should explain why. (c.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and an estimation of the loss of range of motion during flare-ups. 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 all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. (d.) Additionally, the examiner is asked to provide an opinion based on the entirety of the record as to the functional impairment from pain with movement of the left ankle. The examiner must fully explain the rationale for any opinion as to the functional impairment from pain with movement of the left ankle with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (e.) Lastly, the examiner is asked to provide an opinion based on the entirety of the record as to the severity, frequency, and duration of any flare-ups, and an estimation of the loss of range of motion during flare-ups. 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 all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.