Citation Nr: 21014249 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 95-32 098 DATE: March 11, 2021 REMANDED Entitlement to a disability evaluation in excess of 10 percent for service-connected degenerative arthritis of the right knee is remanded. REASONS FOR REMAND The Veteran served in the National Guard from December 1975 through December 1995, including periods of active duty service from February 1976 to June 1975 and December 1990 to May 1991. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. After remanding this matter in August 2011, October 2012, September 2014, May 2017, and January 2018, the Board denied entitlement to a disability evaluation in excess of 10 percent for service-connected degenerative arthritis of the right knee in a September 2018 decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). By way of a July 2020 Order, the Court vacated and remanded the Board’s September 2018 decision pertaining to this issue. 1. Entitlement to a disability evaluation in excess of 10 percent for service-connected degenerative arthritis of the right knee is remanded. In the July 2020 Court Order, the Court noted that the parties agreed that remand was warranted as to this issue, as the Board did not address favorable evidence regarding function of the Veteran’s right knee, including statements made during his March 2018 examination that “may be pertinent to a discussion relating to flare-ups.” During the March 2018 examination, the Veteran stated that, during a flare-up, which occurred daily in the morning, he would only be able to bend his knee “half of what [he] did today” on examination. From that statement, the examiner estimated that, during a flare-up, the Veteran’s flexion would be limited to 45 degrees. However, the Veteran also reported an instance in July 2017 during which he could not walk on his right knee and needed to use crutches for approximately three days. See March 2018 VA C&P Examination. Nevertheless, the Board has not found in the claims file any medical treatment records regarding this instance. On remand, the Board requests that any such medical records be obtained and affiliated with the claims file. Additionally, the Board finds that when evaluating the Veteran pursuant to the criteria set forth in Correia v. McDonald, the examiner stated that the Veteran’s passive range of motion is equivalent to his active range of motion. However, the examiner reported that “[i]t is physically impossible for [her] to support the full weight of the Veteran’s lower extremities to measure passive range of motion of the bilateral knees.” See March 2018 VA C&P Examination; Correia v. McDonald, 28 Vet. App. 158 (2016). In light of this internal inconsistency, the Board finds this examination to be inadequate to determine the nature and severity of the Veteran’s right knee condition. Consequently, the Board requests a new examination to evaluate the current severity of the Veteran’s right knee condition. The Board also notes that the Veteran’s most recent medical records affiliated with the claims file, aside from his March 2018 examination, are dated February 2018. Prior to the new examination, the Board requests that the Veteran’s updated VA and/or private medical records be obtained and associated with the claims file. The matters are REMANDED for the following action: 1. The RO should request the Veteran to identify any and all updated and/or outstanding VA and/or private medical records relating to the Veteran’s degenerative arthritis of the right knee, including but not limited to an incident in July 2017 wherein the Veteran reports he could not walk on the right knee and from February 2018 forward. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release (with respect to any private medical records). He should also be invited to submit these records himself. All actions to obtain the requested records must be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. After completing the foregoing development, schedule the Veteran for an appropriate examination (or telehealth interview, etc., if an in-person examination is not feasible) to determine the current nature and severity of the Veteran’s degenerative arthritis of the right knee. The entire claims file, including a copy of this remand, must be made available to the examiner, who must note its review. All necessary studies and tests should be conducted. The examiner must test the Veteran’s active motion, passive motion, and pain with weight bearing and non-weight bearing. The examiner must attempt to elicit information regarding the severity, frequency, duration, precipitating factors, and alleviating factors of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s right knee degenerative arthritis alone and the effect of such on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given the medical science and known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.