Citation Nr: 21074532 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-43 718 DATE: December 15, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent disabling for the Veteran's service-connected right knee disability for the periods between May 29, 2013 to August 27, 2015 and from October 1, 2015 to May 17, 2018 is remanded. Entitlement to an increased rating in excess of 20 percent disabling for the Veteran's service-connected right knee disability from July 1, 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1970 to April 1974. In August 2020, the Board denied increased ratings for the Veteran's service-connected right knee. The Veteran filed an appeal to the U.S. Court of Appeals for Veterans Claims (CAVC or the Court) contesting the Board's August 2020 decision. In its July 2021 decision, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated the Board's denial of increased ratings for the Veteran's right knee disability. The JMPR found the Board erred when it relied on the July 2013, January 2018, and July 2018 VA examinations since they were inadequate to determine the Veteran's right knee disability severity. Thus, a remand is required to obtain an adequate VA examination to determine the Veteran's current right knee disability severity. 1. Entitlement to an increased rating in excess of 10 percent disabling for the Veteran's service-connected right knee disability for the periods between May 29, 2013 to August 27, 2015 and from October 1, 2015 to May 17, 2018 2. Entitlement to an increased rating in excess of 20 percent disabling for the Veteran's service-connected right knee disability from July 1, 2018 The Veteran contends that he is entitled to a higher disability rating for his right knee disability. He was afforded a VA examination in July 2013, January 2018, and July 2018. The JMPR pointed out that all three of these VA examinations were inadequate because they did not address many aspects provided for an adequate examination. The examiners did not consider the disabling effect of pain on motion; at what point during range of motion pain resulted in functional loss on use, after repeated use over time, and during flare-ups; explain the basis for refusing to provide a non-speculative opinion, or test for pain on both active and passive motion and in weight-bearing and non-weight-bearing. Deluca v. Brown, 8 Vet. App. 202, 206 (1995); Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016). The JMPR also explained that the Board did not address why the Veteran was entitled to a separate disability rating under Diagnostic Code 5257. Thus, as a result a new VA examination is required to obtain an adequate examination that addresses all of the above. 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. (Continued on the next page) (a.) 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). (b.) Additionally, 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). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, Associate 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.