Citation Nr: 21075263 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-20 311A DATE: December 20, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent from July 10, 2009 to April 26, 2017 and from August 1, 2017, for service-connected residuals of the right knee acromioclavicular ligament repair (right knee disability) is remanded. Entitlement to a rating in excess of 20 percent for instability of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1991 to March 1995. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2020 decision, the Board of Veterans' Appeals (Board), inter alia, denied the Veteran's claim for entitlement to an initial rating greater than 10 percent from July 10, 2009 to April 26, 2017 and from August 1, 2017 for a right knee disability and a rating greater than 20 percent for instability of the right knee. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), partially vacated the June 2020 Board decision, and remanded the matter to the Board for readjudication consistent with the JMPR. As noted in the JMPR, the Board erred in relying on VA knee examinations prior to April 26, 2017 as they did not comply with the requirements set forth in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) (holding that examinations of joints should, wherever possible, include the results of range of motion testing inactive and passive range of motion, and in weight-bearing and nonweight-bearing). In addition, the Court stated that the examinations did not comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) as they did not contain information regarding functional loss as it pertained to the Veteran's right knee pain and motion loss during flare-up and repetitive use periods. The JMPR noted that for the period from August 1, 2017, the January 2020 VA examination did not comply with Correia because it did not provide range of motion testing for weight-bearing and nonweight-bearing. The JMPR also stipulated that the Board did not ensure that VA satisfied its duty to assist the Veteran in undertaking efforts to obtain private treatment records relevant to the issues on appeal. The JMPR also stated that remand is also warranted because the Board erred in finding that a separate rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5258 for dislocated semilunar cartilage would be duplicative or overlapping with ratings under 38 C.F.R. § 4.71a DCs 5271 and 5257. In fact, in Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017), the Court held that evaluation of a knee disability under DCs 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of same knee under DC 5258 or 5259. 38 C.F.R. §§ 4.14, 4.71a, DCs 5257-5261. Given the deficiencies noted above, these matters are remanded for further VA medical examination and opinion, consistent with the JMPR. The matters are REMANDED for the following action: 1. Request that the Veteran identify all private/ non-VA medical treatment for his service-connected right knee disability/instability and provide authorizations for the release of medical records. For all identified private medical records in the Veteran's response, take appropriate action to secure the identified private medical records with documentation of all search efforts. Notify the Veteran of any inability to obtain sufficiently identified records and inform him that he may submit any records in his possession directly to VA. 2. Obtain a retrospective opinion from an appropriately qualified physician as to the Veteran's right knee disability from July 10, 2009 to April 26, 2017. The examiner should review the entire claims file, including prior VA examinations and medical treatment records. A copy of this remand, including the remand directives, should be provided to the VA examiner. The retrospective opinion should consider functional loss, for the right knee for the entire period on appeal. The examiner should be advised that on VA examinations prior to April 26, 2017, range of motion (ROM) was not tested on both weight-bearing and nonweight-bearing conditions, and there was no measurement of passive ROM. In addition, the previous VA examiners did not opine as to whether right knee pain could significantly limit functional ability during flare-up and repetitive use periods. The examiner should provide retrospective assessments of what the likely ranges of motion would have measured on each examination prior to April 26, 2017, had ROM been tested in weight-bearing and nonweight bearing conditions, as well as on passive and active ROM. The examiner should provide a full assessment of joint function under 38 C.F.R. § 4.59. If this assessment is not feasible, please clearly explain why that is so. 3. Then, schedule the Veteran for a VA knee examination with an appropriately qualified physician to evaluate the severity of his service-connected right knee disability/instability from August 1, 2017. The claims file must be reviewed, and such review should be noted in the report. Any indicated evaluations, studies, and tests should be conducted and must include the right knee. The examination should be conducted in accordance with the current knee disability benefits questionnaires and consistent with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), to specifically include testing the range of motion in active motion, passive motion, weightbearing, and non-weightbearing, as well as address the Veteran's functional loss, in terms of range of motion, during flareups and due to repetitive use over time. (Continued on the next page) 4. The agency of original jurisdiction (AOJ) should then readjudicate all pending issues on appeal, including entitlement to increased/separate ratings for the Veteran's service-connected right knee disability/instability. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.