Citation Nr: 21074295
Decision Date: 12/14/21	Archive Date: 12/14/21

DOCKET NO. 16-45 303
DATE: December 14, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for service-connected right knee degenerative joint disease, formerly patellofemoral chondromalacia, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1969 to January 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

In an October 2020 decision, the Board denied entitlement to a disability rating in excess of 10 percent for service-connected right knee degenerative joint disease, formerly patellofemoral chondromalacia.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 Order, the Court granted a joint motion for partial remand (JMPR) and vacated the Board's October 2020 decision. The Court remanded the case for further action consistent with the terms of the JMPR. 

1. Entitlement to a rating in excess of 10 percent for service-connected right knee degenerative joint disease, formerly patellofemoral chondromalacia, is remanded.

The Board sincerely regrets the delay, but the claim must be remanded for a new examination that complies with Mitchell  v.  Shinseki, 25 Vet.App. 32, 44 (2011), Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), as discussed in the JMPR. 

The matters are REMANDED for the following action:

1. Obtain the Veteran's updated VA treatment records.

2. Arrange for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran's service-connected right knee degenerative joint disease to assess the severity of the disability for the period on appeal. The entire claims file and a copy of this REMAND must be made available to the examiner in conjunction with the examination. 

In the examination report, the examiner must include all of the following:

A. Active range of motion testing results.

B. Passive range of motion testing results.

C. Weightbearing range of motion testing results.

D. Non-weightbearing range of motion testing results.

The examiner must provide numerical measurements for each of the tests listed above. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. In this regard, at his February 2020 VA examination, the Veteran reported that his right knee disability was so severe that he could not walk on it by the end of each day and took muscle relaxers.

If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate.

 

 

P.M. DILORENZO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Mohammad

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.