Citation Nr: 21014018 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 10-01 491 DATE: March 11, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left knee instability since March 1, 2013 is remanded. Entitlement to a rating in excess of 30 percent for left knee degenerative arthritis since March 1, 2013 is remanded. Entitlement to a rating in excess of 20 percent for symptomatic removal of left knee semilunar cartilage since March 1, 2013 is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army National Guard and had a period of initial active duty for training from August 1990 to November 1990. He also had verified Army National Guard service from February 1996 to March 1996, during which he sustained a disability for which service connection has been granted. That period of service is therefore deemed active duty. The Veteran had additional periods of verified and unverified active and inactive duty for training until he separated from the Army National Guard in April 1998. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Board decided the claims on appeal. The Veteran subsequently appealed the April 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In November 2014, a Joint Motion for Partial Remand (JMPR) was granted by the Court, vacating the April 2014 Board decision and remanded the issues back to the Board. Subsequently, the Board remanded the issues on appeal in August 2015, March 2017, September 2017, August 2018, and July 2020 for additional development. 1. Entitlement to a rating in excess of 10 percent for left knee instability since March 1, 2013. 2. Entitlement to a rating in excess of 30 percent for left knee degenerative arthritis since March 1, 2013. 3. Entitlement to a rating in excess of 20 percent for symptomatic removal of left knee semilunar cartilage since March 1, 2013. The Veteran contends that his left knee disabilities are worse than the ratings currently assigned. The Board notes that the most recent VA examination was conducted in January 2021. Upon review, the Board finds that remand is required to afford the Veteran a new VA examination. The Court has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states, as relevant, that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing.” The January 2021 examination did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination that contains adequate information. Specifically, while range of motion (ROM) test results were reported, there was no indication that such testing was reported on both active and passive motion. The examiner did find objective evidence of pain on passive motion; however, she did not report any ROM test results associated with passive motion. Therefore, the examination is inadequate and the Board must remand this matter for a new VA examination that complies with Correia. Regarding knee instability, the VA examiner noted that he was unable to perform joint stability testing on the left knee due to the Veteran’s complaints of increased knee pain, but also noted that the Veteran regularly uses a knee brace. The Board notes that the regulations for rating a knee disability based on instability have changed effective February 7, 2021. The new regulations provide for ratings based on persistent instability and the use of a brace, the use of an assistive device (such as a cane, crutch, or walker) and/or bracing for ambulation. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. In this case, it is unclear whether there is persistent instability or whether the brace is prescribed for instability or pain relief. Given the new regulations, the examiner must address these questions on remand so the Board may properly rate the claim. 4. Entitlement to a TDIU as a result of service-connected disabilities. The Veteran contends that he is entitled to a TDIU because he is unable to work as a result of his service-connected disabilities. The TDIU claim is inextricable intertwined with the left knee claims. As such, the Board finds that the Veteran’s TDIU claim must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran’s claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected left knee disabilities. The evidence of record must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All necessary testing should be conducted. In particular, the examination must include tests of all applicable ranges of motion in active motion, passive motion, weight-bearing, and non- weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, if the examination is not conducted during a flare-up, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss (due to pain, weakness, fatigability, or incoordination) regarding any flare-ups by alternative means. The examiner must provide an estimate of functional loss in terms of range of motion based on the Veteran’s statements, available medical records, and other relevant sources. The examiner must also address the following in regards to joint instability: (a.) Does the Veteran require the use of a knee brace? If so, is the Veteran’s knee brace prescribed for persistent instability? (b.) Does the Veteran require the use of an assistive device? If so, is the use of the assistive device prescribed for persistent instability? (c.) If both (a) and (b) are answered in the affirmative, does the need for a knee brace and assistive device suggest persistent instability, notwithstanding the testing results? (Continued on the next page)   In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.