Citation Nr: 21074549 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 12-18 472 DATE: December 15, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for right knee degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from September 1980 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The case was initially brought before the Board in May 2019, at which time the Board denied restoration of a 20 percent disability rating, that was reduced to 10 percent, under Diagnostic Code (DC) 5257 for right knee sprain, effective April 2011; denied entitlement to a disability rating in excess of 10 percent under DC 5003-5257 for service-connected residuals of right knee sprain, from April 2011 to August 2015; denied entitlement to a disability rating in excess of 10 percent under DC 5003 for right knee degenerative arthritis from August 2015; denied entitlement to a disability rating in excess of 20 percent for a separate rating for right knee meniscal condition under DC 5258; and denied a different effective period other than from April 2011 to August 2015 for the grant of a separate disability rating for right knee meniscal condition under DC 5258. The Veteran subsequently appealed the Board's May 2019 decision to the Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of Veterans Affairs (Parties), vacated the Board's May 2019 decision, regarding entitlement to the restoration of a 20 percent evaluation for service-connected residuals of a right knee sprain that was reduced to 10 percent under DC 5257 effective April 2011, entitlement to an evaluation in excess of 10 percent under DC 5003-5257 for service-connected residuals of right knee sprain from April 2011 to August 2015, and entitlement to an evaluation in excess of 10 percent under DC 5003 from August 2015, and remanded the claims to the Board. The Court also vacated the May 2019 decision of the Board to the extent that it dismissed the Veteran's claim of entitlement to service connection for sleep apnea on the basis that the Veteran did not submit a timely notice of disagreement. A January 2015 rating decision initially denied service connection for sleep apnea; as the Veteran submitted new and material evidence within a year of that decision, it never became final, and the Board reviews the Veteran's claim on a de novo basis. 38 C.F.R. § 3.156(b). In a March 2021 Board decision, it granted entitlement to a restoration of a separate disability rating for service-connected right knee sprain under DC 5257 and remanded the above-titled claim along with service connection for sleep apnea for further development. Of note, the March 2021 Board decision, in granting a restoration of a separate disability rating for service-connected right knee sprain under DC 5257, clarified the discrepancy between the Court remand and its decision in that the Veteran's August 2020 Appellate Brief made clear that this issue was limited to the restoration of the 10 percent disability rating under DC 5257 and that the Veteran did not assert that a rating higher than 10 percent was warranted. Notably, subsequent to the March 2021 Board decision, the Veteran has not appealed this decision to Court, and the period for appellate review has passed. Also, as previously indicated, based on the JMPR, the Board remanded the issue of entitlement to service connection for sleep apnea for a VA examination. A VA examination was obtained in May 2021. Based on that VA examination the RO granted the Veteran's service connection claim for sleep apnea in a September 2021 rating decision. The next month the RO issued a rating decision proposing to sever service connection due to a clear and unmistakable error. Several days later the RO issued a letter notifying the Veteran that the decision will be made no earlier than January 1, 2022 and that he has 30 days to request a hearing and 60 days to submit evidence. Thus, the issue of entitlement to service connection for sleep apnea is no longer before the Board. Entitlement to a disability rating in excess of 10 percent for right knee degenerative arthritis is remanded. The Parties to the JMPR found that the Board erred in its reliance on the November 2009, September 2014, and August 2015 examination reports because such were not in compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011), and thus remanded the claim back to the Board for further development. The Board remanded the issue in March 2021 for a VA examination, which was obtained in May 2021. Unfortunately, another remand is required because the May 2021 VA examination report does not substantially comply with the March 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, despite the Board's clear instruction, there is no indication that the examiner conducted range of motion testing during weight-bearing, as required by Correia v. McDonald, 28 Vet. App. 158, 168 (2016). As such, a new examination is necessary on remand and any updated treatment records should be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and extent of all impairment due to the service-connected right knee disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's right knee disability. The examiner must test and record the range of motion for both knees in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that she/he should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. There should be a complete discussion of the Veteran's flare-ups, to include their severity, frequency, and duration; precipitating and alleviating factors; and an opinion as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. See Sharp v. Shulkin, 29 Vet. App. 32 (2017). Additionally, the examiner should determine whether the Veteran has ankylosis of the knees; instability or subluxation of the knees; nonunion of the tibia and fibula with loose motion and requiring knee braces; dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in the knees. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Thereafter, readjudicate the appeal. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.