Citation Nr: 21006239 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-29 094 DATE: February 3, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right knee disability based on limitation of motion is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from June 2008 to September 2011. In November 2017, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. In February 2018, the Board remanded the appeal for further development. In June 2019, the Board issued a decision which denied the claim on appeal. The Veteran filed a timely appeal to the Court of Appeals for Veterans’ Claims (Court). In an August 2020 Joint Motion for Partial Remand, the parties agreed to remand the appeal to the Board for further development. A rating in excess of 10 percent for a right knee disability based on limitation of motion is remanded. The Veteran contends that his right knee disability is such that a rating in excess of 10 percent is warranted. In a February 2018 Board decision, the Board remanded the claim of increased rating for a right knee disability for a current examination. The Board directives instructed that the examiner determine whether there is additional limitation of motion due to pain, weakness, excess fatigability, incoordination, pain or flare-ups due to the Veteran’s right knee disability. The Board further directed that any additional loss of motion should be noted in degrees. If such information cannot be feasibly determined, the examiner must explain why this information cannot be provided. The Board directives also instructed that range of motion testing be done in active and passive, and weight and non-weight-bearing positions, and that the degree at which objective evidence of pain begins needed to be recorded. In June 2018, the Veteran was afforded a VA examination. Though the examiner found that the Veteran’s description of functional loss during flare-ups and after repeated use were consistent with the examination, the examination did not indicate the degree of additional loss of range of motion. The examiner explained that he was unable to objectively quantitate symptom or range of motion changes associated with usage during said flare-ups or repeated use over time. It is not evident that in making this determination of inability, the examiner attempted to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Moreover, the examination does not indicate the degree to which objective evidence of pain began during range of motion testing, or whether weight-bearing and non-weight-bearing range of motion testing, and active and passive range of motion testing occurred. For these reasons, a remand is necessary. The matters are REMANDED for the following action: Schedule the Veteran with the appropriate examiner to determine the current severity of the Veteran’s service-connected right knee disability. All indicated testing should be accomplished and all symptomatology associated with each knee disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran’s right knee and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and non-weight-bearing. The examiner’s report should describe objective evidence of painful motion in terms of degrees, if any, during each test. It is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repeated use over time, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare-up or repeated use over time cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of functional loss during flare-ups or after repeated use over time, and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ford 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.