Citation Nr: 21012117 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 10-41 036 DATE: March 3, 2021 REMANDED Entitlement to ratings for a right knee disability in excess of 20 percent prior to November 14, 2011, in excess of 30 percent from November 14, 2011, to February 24, 2015, in excess of 40 percent from February 24, 2015, to March 20, 2019, and in excess of 30 percent from March 20, 2019 is remanded. REASONS FOR REMAND The appellant is a Veteran who had active service from November 1993 to March 2006. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 Department of Veterans Affairs (VA) rating decision. In March 2018, a hearing in the matter was held before the undersigned; a transcript is in the record. In November 2019, the Board granted a 20 percent rating for the right knee disability prior to November 14, 2011, denied a rating in excess of 30 percent from November 14, 2011, to February 24, 2015, granted a 40 percent rating (30 percent rating under Diagnostic Code (Code) 5261 and 10 percent under Code 5237) from February 24, 2015, to March 20, 2019, and denied a rating in excess of 30 percent from March 20, 2019. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In September 2020, CAVC issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Partial Remand (JMPR), which did not disturb the Board’s decision to the extent it granted increased ratings. In the September 2020 JMPR, the parties agreed that the March 2019 VA examination was inadequate as the examiner did not note any limitations due to pain. In addition, the parties agreed that the Board did not address the inconsistencies between the Veteran’s December 2012 and February 2015 VA examinations. Finally, the parties agreed that the Board did not adequately consider the Veteran’s right knee instability. Accordingly, remand for an adequate examination for rating purposes and to address any right knee instability and reconcile the inconsistencies regarding the Veteran’s right knee range of motion is necessary. The matter is REMANDED for the following: 1. With any necessary identification of providers (and authorizations to secure records) by the Veteran, obtain all outstanding VA and private medical records pertaining to treatment or evaluation of his right knee disability. 2. Then, arrange for a VA examination by an appropriate clinician to assess the severity of his right knee disability. The Veteran’s claims file (to include this remand, the JMPR, and any additional records received) must be reviewed by the examiner. Consistent with 38 C.F.R. § 4.59, the examination report must include results of active and passive range of motion studies, to include limitations due to pain, repetitive motion testing, and in weight bearing, and/or non-weight bearing weight bearing, and non-weight bearing. If any testing required cannot be completed, there must be explanation why that is so. The examiner should provide an estimate of the functional loss of range of motion with repetitive use (if actual testing for such cannot be completed) and that occurring during flare-ups (the frequency, nature, and duration of which must be elicited and described for the record). To the extent possible, the examiner should reconcile (express agreement or disagreement, with rationale) the inconsistent range of motion findings on the December 2012 and February 2015 VA examinations. The examiner should also specifically address (for throughout the period for consideration) whether there was instability of the right knee (and if so, the extent of such throughout the period for consideration), considering the Veteran’s reports of instability in September 2010 and April 2011, VA treatment records showing right knee instability in December 2011, February 2013, and October 2013, and the February 2015 VA examination noting slight lateral instability. The examiner should review the JMPR (dated 9/29/2020) for an explanation of the deficiencies in the medical evidence found by the parties, and the examination report must address those deficiencies in detail. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.