Citation Nr: 21011224 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-04 051 DATE: March 1, 2021 ORDER Entitlement to extraschedular rating for right knee disability is denied. REMANDED Entitlement to an increased rating for a right knee disability, currently evaluated as 10 percent disabling based on painful flexion, is remanded. FINDING OF FACT The Veteran’s right knee disability symptoms and resulting impairment are not exceptional and are contemplated by the rating schedule. CONCLUSION OF LAW The criteria for entitlement to extraschedular rating for right knee disability are not met. 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45, 4.59. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in in the Navy from November 1966 to April 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2017 at which time it was remanded for an updated VA examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). It was again before the Board in June 2019 when the 10 percent rating for right knee disability was continued. The Veteran appealed the June 2019 Board decision to the Court of Appeals for Veterans Claims (CAVC), which resulted in a Joint Motion for Partial Remand (JMPR) by the parties. The JMPR directed the Board to provide for a new VA examination with range-of-motion testing under weight-bearing and non-weight-bearing circumstances or to explain why such testing is not possible. And, to address extra-schedular considerations. Referral for extraschedular consideration for right knee disability is denied. To warrant referral for extraschedular consideration, a disability must be so exceptional or unusual, with related factors such as marked interference with employment, that it renders application of the regular schedular rating impractical. 38 C.F.R. § 3.321(b)(1). When the Board finds that an extraschedular rating may be warranted, the Board cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423. Rather, the Board must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Services. Thun v. Peake, 22 Vet. App. 111,115 (2008). First, the level of severity and symptomatology of the Veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If “the criteria reasonably describe the Veteran’s disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule”, the schedular evaluation is adequate, and “no referral is required.” Id. The first step of the analysis is not automatically satisfied just because a certain symptom or functional effect is not expressly listed in a diagnostic code. Long v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2371, *6; see Doucette v. Shulkin, 28 Vet. App. 366, 369 (2016). “[E]xceptionality remains the touchstone in determining whether extraschedular consideration is warranted under § 3.321(b)(1)”, and the first step of the analysis is only satisfied when the Veteran’s symptoms are truly unusual or exceptional. Long v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2371, *8. Second, once exceptional symptomatology is found, then an evaluation of whether that symptomatology causes “marked interference with employment,” “frequent periods of hospitalization,” or other related factors is warranted. Thun, 22 Vet. App. at 115; See § 3.321(b)(1). Finally, if both exceptional symptomatology and related factors, which render application of the regular schedular rating impractical, are found then the Veteran’s claim must be referred to the Director of Compensation Services for a preliminary determination regarding the assignment of an extraschedular rating. In this case, although the Veteran’s representative broadly asked the Board to consider entitlement to an extraschedular evaluation, neither the representative nor the Veteran has not specified any ways in which the right knee disability is incapable of evaluation under the diagnostic code relevant to joints. However, to the extent that the Veteran seeks extraschedular rating for his right knee disability, the Board finds that his right knee signs and symptoms and resulting impairment are contemplated by the rating criteria. The Veteran has consistently described symptomatology that includes pain and instability resulting in functional impairment. See July 23, 2020 CAPRI. The schedular rating criteria provides disability ratings for orthopedic disabilities based on pain. 38 C.F.R. §§ 4.45, 4.59. Moreover, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by decreased or abnormal excursion, strength, speed, coordination, or endurance for example. 38 C.F.R. § 4.40. Thus, the Board finds that the Veteran’s right knee disability symptoms and resulting impairment are contemplated in the rating schedule. Because the Board finds that the Veteran’s right knee symptoms and resulting impairment are contemplated by the rating schedule and are not exceptional, there is no need to address whether that symptomatology causes marked interference with employment, frequent periods of hospitalization, or other related factors. Referral is not warranted. REASONS FOR REMAND In May 2017, the Board remanded the Veteran’s right knee claim for an updated VA examination in compliance with Correia. Although the examiner indicated that there was no evidence of pain with weight bearing, the parties agreed in the JMPR that there was “no indication that the examiner performed testing in weight-bearing or non-weight-bearing conditions or explained why she could not do so.” During the pendency of the appeal, another VA examination was conducted in January 2020. Similarly, while the examiner indicated that there was evidence of pain with weight bearing, there was no explicit indication that the examiner performed testing in weight-bearing or non-weight-bearing conditions or explained why he could not do so. Therefore, the Board remands for an addendum medical opinion to determine whether the May 2017 and January 2020 VA examinations were performed utilizing weight-bearing or non-weight-bearing conditions. The matter is REMANDED for the following action: 1. Forward the entire claims file and a copy of this remand to the VA examiner who conducted the January 2020 examination, if available, for the purpose of determining whether the examination was performed utilizing weight-bearing or non-weight-bearing conditions. If testing in weight-bearing or non-weight-bearing conditions was not conducted, or if the examiner is unavailable, please schedule an additional physical examination with an appropriate clinician to conduct range of motion testing in active motion, passive motion, and in weight-bearing, and non-weight-bearing condition. In this event, the examiner should also attempt to provide retrospective assessments of what the likely ranges of motion would have measured on each prior examination, had ROM been tested in (1) passive motion, (2) weight-bearing, and (3) non-weight-bearing. If this assessment is not feasible, please clearly explain why that is so. A complete rational for all opinions rendered must be provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate as such and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sloley, 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.