Citation Nr: 21014153 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-34 717A DATE: March 11, 2021 REMANDED Entitlement to an initial disability rating higher than 10 percent for the service-connected right knee condition, status post anterior cruciate ligament (ACL)/meniscus repair is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1984 to October 1989, and from April 1990 to March 1991. The current appeal comes before the Board of Veterans’ Appeals (Board) from an April 2012 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, granted service connection for a right knee condition ACL/meniscus repair, and assigned a noncompensable rating, effective March 24, 2011. In a June 2014 rating decision, during the pendency of the Veteran’s appeal, the RO increased the disability rating for the right knee condition to 10 percent, effective March 24, 2011. In August 2018, the Board remanded the claim on appeal to the Agency of Original Jurisdiction for further evidentiary development. Higher Initial Rating for Right Knee Condition Pursuant to the Board’s August 2018 remand, the Veteran was afforded a new VA-contracted examination for his service-connected right knee disability in January 2020. The examination findings, however, were not entirely responsive to the Board’s remand directives and are otherwise not adequate to adjudicate this claim properly. The Board remanded the current claim to obtain specific information pertaining to the ranges of motion of the right knee on both active and passive motion, and in weight-bearing and non-weight bearing, pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). While the January 2020 examiner concluded that the Veteran did not have pain on passive motion of his right knee or on non-weight bearing testing, she did not provide the results of range of motion testing in passive versus active motion or the results in weight-bearing versus non-weight bearing. A remand by the Board confers on a claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, the Board observes that reports of a March 2012 VA examination and the January 2020 examination note that the Veteran underwent surgical repair of his meniscus and ACL in 1986. Moreover, the January 2020 examination report noted that he occasionally uses a knee brace as an assistive device as a normal mode of locomotion. Given the Veteran’s history of surgical repair of his meniscus and ACL, and the use of an assistive device, further examination is warranted to ascertain whether he suffers from a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing instability, and whether the assistive device was prescribed by a medical provider in accordance with amended regulations for evaluating musculoskeletal disabilities that went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Accordingly, this matter is hereby REMANDED for the following action: Schedule the Veteran for a new VA examination to determine the current severity of his service-connected right knee disability. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner should provide a full description of the right knee disability and report all signs and symptoms necessary for evaluating the disability under the pertinent rating criteria. The examiner should specifically test the range of motion and pain in the Veteran’s right knee in active and passive motion, and in weight-bearing and non-weight bearing (with results expressed in degrees). The same range of motion testing should also be accomplished for the Veteran’s left knee (for comparison purposes). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner must attempt to elicit information regarding the severity, frequency, duration, and characteristics of reported flare-ups of the right knee disability, and the degree of functional loss during flare-ups. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use over time, due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion, must also be noted. The examiner must offer an opinion as to whether there would be additional limits on functional ability during reported flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation in range of motion beyond that shown clinically. Given the medical evidence of surgical repair of the Veteran’s meniscus and ACL, and his use of a brace as an assistive device, the examiner must specifically ascertain whether the Veteran suffers from a sprain, incomplete ligament tear or complete ligament tear (whether repaired, unrepaired, or failed repair) causing instability, and whether any assistive device was prescribed by a medical provider. A clear explanation for all opinions expressed would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide a requested opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.