Citation Nr: 21011310 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 11-16 849 DATE: March 1, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for left knee postoperative residuals ligament reconstruction (hereinafter “left knee instability”) is remanded. Entitlement to an evaluation in excess of 10 percent for left knee osteoarthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1981 to August 1992. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a February 2010 rating decision by the Regional Office (RO). A September 2017 Board decision denied entitlement to higher ratings for both the left knee instability (20 percent) as well as for left knee osteoarthritis (10 percent), albeit the Board acknowledges that entitlement to an increased rating for the left knee osteoarthritis was not listed at the outset as one of the issues on appeal therein. Nevertheless, the September 2017 Board decision addressed and denied entitlement to higher ratings for both the left knee instability as well as the left knee osteoarthritis. See BVA Decision, September 2017 at p.8 of 12. A December 2018 order by the Court of Appeals for Veterans Claims (Court) granted a joint motion by the parties to vacate the September 2017 Board decision and to remand these matters back to the Board. The parties’ motion cited the fact that, among other things, the range of motion test results from the last VA examination were not fully described in terms of weight-bearing and nonweight-bearing, active and passive, consistent with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016). As noted above, the September 2017 Board decision had denied entitlement to higher ratings for the left knee instability as well as for the left knee osteoarthritis. Furthermore, the range of motion test results in the VA examination report at the center of the parties’ joint motion for remand bear directly on the issue of entitlement to an evaluation in excess of 10 percent for the left knee osteoarthritis. Therefore, because the Veteran has two separate disability ratings for the same joint, and for all the reasons stated above, the Board has clarified the issues on appeal as including entitlement to higher ratings for both the left knee instability, as well as the inextricably intertwined issue of entitlement to a higher rating for the left knee osteoarthritis. In July 2019, the Board remanded the appeal for further development consistent with a joint motion by the parties. These matters are now returned to the Board for further appellate review. 1. Entitlement to an evaluation in excess of 20 percent for left knee instability 2. Entitlement to an evaluation in excess of 10 percent for left knee osteoarthritis The Veteran’s left knee osteoarthritis is currently assigned a 10 percent rating under Diagnostic Code 5010, effective November 26, 2002. A separate 20 percent rating is assigned for left knee instability (“postoperative residuals ligament reconstruction left knee”) under Diagnostic Code 5257, effective August 19, 1992. The Veteran seeks increased ratings. See Correspondence, May 2008. Most recently, in July 2019, the Board remanded the Veteran’s claims so that a new VA examination could be provided that included ranges of motion in weight bearing and nonweight-bearing, active and passive, consistent with the Court’s holding in Correia and the joint motion by the parties. The Board also directed that the examiner address ranges of motion during flare-ups and with repeated use over time, and that the examiner provide an opinion describing the Veteran’s ranges of motion over the period on appeal (since May 2008). Subsequently, a January 2020 VA examination was performed. A January 2021 VA medical opinion was also obtained from another examiner. The January 2021 VA medical opinion shows the examiner opined that he could not describe the Veteran’s ranges of motion since May 2008 in active and passive, weight-bearing and nonweight-bearing, reasoning that there was inadequate medical documentation available, and that general medical knowledge was insufficient to provide the information. Regarding the January 2020 VA examination report, although one might deduce that the ranges of motion provided in the report are in weight-bearing, active motion, it is not explicit in the report, and if so, whether these ranges of motion are the most limited as opposed to nonweight-bearing and in passive motion. After providing initial ranges of motion, and then ranges of motion during flare-ups and with repeated use over time, the January 2020 VA examiner simply added at the end of the report that there was left knee pain in nonweight-bearing and with passive motion. Therefore, the Board finds this matter should be remanded for clarification from the January 2020 VA examiner as to whether the ranges of motion in the report were in weight-bearing, and in active motion, and if so, whether those ranges would be more limited than ranges of motion in nonweight-bearing and in passive motion. If necessary, a new VA examination should be performed. The matters are REMANDED for the following action: 1. Ask the same VA examiner who prepared the January 2020 VA examination report (which is a different examiner than in January 2021) to review her examination report and clarify whether the initial ranges of motion for the Veteran’s left knee, and the ranges of motion during flare-ups and with repeated use over time, were in weight-bearing and in active motion (versus in nonweight-bearing and passive motion), and if so, whether these ranges of motion would be more limited as opposed to nonweight-bearing and passive motion. 2. If either of the two questions in paragraph (1) above are answered in the negative, then a new VA examination should be provided to address the current severity of the Veteran’s left knee disability – to include ranges of motion in weight-bearing and nonweight-bearing, active and passive. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must comply with the requirements of 38 C.F.R. § 4.59 involving measurements of passive and active range of motion - in both weight bearing and non-weight bearing. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups (if it is not feasible to quantify, please explain). Also, the examiner should ask the Veteran to describe in his own words whether there is any additional functional loss during flare-ups, and the examiner should note the frequency, duration, and severity of flare-ups. The examiner should also note whether weakened movement, excess fatigability, incoordination, or pain significantly limits functional ability with repeated use over time. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). Regarding both flare-ups and repeated use over time, please note to the VA examiner that if additional functional loss cannot be described in terms of degrees of limitation of motion, it should be clear that an examiner has “considered all procurable and assembled data before stating that an opinion cannot be reached,” and “that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large.” The Board may “accept a VA examiner’s statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed.” See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Also, the VA examiner should be asked to express a retrospective opinion, based on a review of the medical evidence, describing the ranges of motion for the Veteran’s left knee since May 2008 – in active and passive motion, in weight-bearing and in nonweight-bearing. If the examiner is unable to provide these ranges of motion, a detailed rationale should be provided for such conclusion. The examiner should also address the effect of the Veteran’s left knee disability on his occupational functioning. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Juliano, 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.