Citation Nr: 21012731 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-27 019 DATE: March 5, 2021 REMANDED Entitlement to a disability rating greater than 10 percent for right knee arthritis manifested by painful motion is remanded. Entitlement to a disability rating greater than 10 percent for left knee arthritis manifested by painful motion is remanded. Entitlement to a disability rating greater than 10 percent for slight instability in the left knee is remanded. Entitlement to a disability rating greater than 20 percent for moderate instability of the right knee is remanded. REASONS FOR REMAND The Veteran had active service from January 1977 to December 1979 in the U.S. Army. He also had additional unverified service. This appeal has a long procedural history. A Travel Board hearing was held in November 2016 before the undersigned Veterans Law Judge, and a copy of the hearing transcript has been added to the record. In August 2019, the Board denied the Veteran’s increased rating claims for left knee arthritis manifested by painful motion and for right knee arthritis manifested by painful motion, each evaluated as 10 percent disabling. The Board also granted a separate 10 percent rating for slight instability of the left knee and a separate 20 percent rating for moderate instability of the right knee. Both the Veteran, through an attorney, and VA’s Office of General Counsel appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (Joint Motion). The Court granted the Joint Motion in July 2020. The Veteran essentially contends that his service-connected bilateral knee arthritis and service-connected bilateral knee instability are more disabling than currently evaluated. Both parties to the Joint Motion argued successfully to the Court that the Board erred in its August 2019 decision by relying on a VA examination dated in May 2018 to adjudicate all of the Veteran’s currently appealed claims. Both parties specifically argued that the May 2018 VA examination was inadequate for VA adjudication purposes because it did not comply with the Court’s decisions in Sharp and Correia. The Board notes that it is bound by the Court’s July 2020 Order granting the Joint Motion. Thus, the Board finds that, on remand, the AOJ should schedule the Veteran for appropriate examination to address the questions posed in the Joint Motion concerning the current nature and severity of the Veteran’s service-connected bilateral knee arthritis and his service-connected bilateral knee instability. The AOJ also should obtain the Veteran’s updated treatment records. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran’s updated treatment records. 2. Schedule the Veteran for examination to determine the current nature and severity of his service-connected bilateral knee arthritis and service-connected bilateral knee instability. If possible, this examination should be conducted by a clinician other than the clinician who conducted the Veteran’s May 3, 2018, VA knee and lower leg conditions Disability Benefits Questionnaire. Based on a review of the claims file, the clinician is asked to state whether the Veteran reports experiencing flare-ups of pain in each of his knees. If the Veteran reports flare-ups of knee pain, then the clinician is asked to describe this in terms of loss of range of motion in each of the knees. If flare-ups of knee pain reported by the Veteran cannot be described in terms of loss of range of motion in each of the knees, then the clinician must explain why this is so and whether the inability to provide range of motion testing results during flare-ups of knee pain reflects a lack of knowledge among the medical community at large. The clinician next is asked to perform joint testing for knee pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite joint for each of the Veteran’s knees. If pain is present on either active or passive motion or in weight-bearing and non weight-bearing in either of the Veteran’s knees, then the clinician is asked to describe this in terms of loss of range of motion. If the Veteran’s knee pain on either active or passive motion or in weight-bearing and non weight-bearing in either of the knees cannot be cannot be described in terms of loss of range of motion in each of the knees, then the clinician must explain why this is so and whether the inability to provide range of motion testing results reflects a lack of knowledge among the medical community at large. The clinician next is asked to state whether instability in present in either of the Veteran’s knees and, if so, whether that instability is slight, moderate, or severe. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.