Citation Nr: 21007984 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-08 819 DATE: February 11, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent prior to October 29, 2019 and to a compensable rating thereafter for left knee instability is remanded. Entitlement to a disability rating in excess of 10 percent for left knee limitation of flexion is remanded. Entitlement to a compensable disability rating for left knee limitation of extension is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1982 to December 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the RO granted a separate noncompensable rating for limitation of extension and decreased the disability rating for the Veteran’s left knee instability from 20 percent to a noncompensable rating, effective October 29, 2019. As the July 2020 rating decision did not satisfy the appeal in full, the issues remain on appeal and have been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). These issues were previously remanded by the Board in November 2018. Unfortunately, another remand is necessary before these issues can be adjudicated. 1. Entitlement to a disability rating in excess of 20 percent prior to October 29, 2019 and to a compensable rating thereafter for left knee instability is remanded. 2. Entitlement to a disability rating in excess of 10 percent for left knee limitation of flexion is remanded. 3. Entitlement to a compensable disability rating for left knee limitation of extension is remanded. The Veteran underwent VA examinations for his knee disabilities in October 2019 pursuant to the Board’s prior remand which did not comply with the not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) as the examinations did not contain range of motion measurements for pain on weight-bearing testing or explain why it could not be performed. Finally, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). The RO will have the opportunity to adjudicate the claims with the benefit of the new regulations on remand. Because the record does not contain sufficient evidence to rate the Veteran’s disability under the new rating criteria, and as the previous examinations did not comply with the Court’s rulings in Correia, a new examination is warranted. Additionally, the RO obtain a should request a retrospective opinion related to the severity of the Veteran’s left knee disability which complies with the requirements of Correia and Sharp for the period prior to October 29, 2019 and for the period from October 29, 2019.  Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted).  The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee. 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. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also 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. The examiner should also be asked to provide a retrospective opinion and comment as to whether the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing and the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups can be estimated for the period prior to October 29, 2019 and for the period from October 29, 2019 for the Veteran’s left knee disability.   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). J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.