Citation Nr: 21006094 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-30 287 DATE: February 3, 2021 REMANDED Service connection for a right knee disorder, to include as secondary to a service-connected left knee disorder, is remanded. An initial rating in excess of 10 percent for a left knee disability is remanded. An initial compensable rating for a left knee scar is remanded. REASONS FOR REMAND The Veteran had active service from May 1979 to May 1984 and from March 2003 to July 2003. In an August 2019 Board decision, the Board awarded the Veteran a rating of 10 percent for the left knee disability, but denied the claims for an initial compensable rating for the left knee scar, and service connection for a right knee disorder. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s August 2019 denial of the Veteran’s claims and remanded them back to the Board for action pursuant to the JMPR. 1. Right knee In the September 2020 JMPR, it was noted that the January 2015 VA examiner failed to provide an opinion as to whether a right knee disorder is due to or aggravated by the service-connected left knee disability. However, the Board notes that the basis for the denial was due to the fact the examiner determined that the Veteran did not, in fact, have a currently diagnosed disorder. Nevertheless, the Board notes that the January 2015 VA examiner did not address and assess the Veteran's competent reports of ongoing right knee pain. In 2018, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued a precedential decision regarding pain as a disability. See Saunders v. Wilkie, 886 F.3d 1356, 1361-62 (2018). In Saunders, the Federal Circuit held that pain alone can serve as a disability for VA compensation purposes if the pain results in functional impairment that affects earning capacity. Id. In light of the holding in Saunders, the Board finds that a remand for a new examination and opinion is warranted for the examiner to assess whether pain of the Veteran's right knee results in functional impairment that affect his earning capacity. 2. Left knee The Board finds that a remand is necessary in order to comply with the determinations of the September 2020 JMPR. Specifically, as noted by the JMPR, the January 2015 VA examination of record is inadequate in light of Correia v. McDonald, 28 Vet. App. 158 (2016). This decision reflects that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. Regarding the Veteran's claim for an increased rating for his service-connected left knee disability, a VA examination was conducted in January 2015. That VA examination included evaluation of the knee joint. However, closer inspection of the report of examination shows that it does not include all of the required testing pursuant to § 4.59 and Correia which was requested on remand. Specifically, the VA examiner failed to perform any testing or elicit comment regarding pain on passive range of motion or non-weight-bearing mode. Thus, the January 2015 VA examination does not entirely conform to Correia; a new examination is needed. 3. Left knee scar As additional development in relation to the Veteran's left knee disability has been requested, the Veteran's claim for an increased rating for his service-connected scar of the left knee must also be remanded, as the claim is inextricably intertwined. It is certainly possible that the requested examination and other development may result in findings relevant to the scar. See Harris v. Derwinski, 1 Vet. App. (1991). Thus, remand is appropriate on that basis, and action on the claim is deferred. The matters are REMANDED for the following action: 1. Obtain and associate with the electronic claims file any outstanding VA or private treatment records from October 2014 to the present. 2. Schedule the Veteran for a VA orthopedic examination addressing the etiology of the claimed right knee disorder and the symptoms and severity of the left knee disorder and the associated scar. The examiner must review the claims file in conjunction with the examination. After reviewing the record, the examiner must first opine whether there exists a clinical diagnosis for the right knee. If no clinical diagnosis is made, the examiner must ascertain whether the Veteran’s right knee pain constitutes a functional impairment of earning capacity. If the Veteran’s pain does not reach this threshold, and thus should not be considered a disability, the examiner should so clarify. If either a clinical diagnosis or a functional impairment of earning capacity due to the right knee pain is ascertained, the examiner should next opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s claimed right knee disorder was: 1) incurred during or as a result of his service, or 2) caused or aggravated by the service-connected right knee disorder With regard to the service-connected left knee disorder, any indicated studies or evaluations should be performed. Specifically, the examiner is asked to: (a.) Obtain the Veteran's lay history, including employment and the onset and development of symptomatology, to include flare-ups (if applicable) and exacerbations. (b.) Determine the range of motion (ROM) of the left knee on active and passive motion, with weight-bearing and with non-weight-bearing, on both an initial and after repetitive use basis. FOR EACH ROM, THE EXAMINER IS ASKED TO EXPLICITLY IDENTIFY THE DEGREE IN WHICH PAIN IS FIRST EVIDENCED BY THE VETERAN'S VISIBLE BEHAVIOR. If the examiner is unable to conduct the required testing, a thorough explanation should be provided. If the Veteran describes flare-ups attributable to his left knee disability, after documenting the frequency, duration, and severity thereof, express an opinion as to whether there would be additional functional impairments during such flare-ups. (c.) The examiner is also to comment on the service-connected left knee scar and describe any physical characteristics present, to include reports of pain. Any opinion expressed by the examiner MUST be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. 4. The AOJ MUST review the claims file and ensure that the foregoing development action has been completed in full. If any report or opinion does not include adequate responses to these remand instructions, it must be returned to the providing examiner for corrective action. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.