Citation Nr: 21021512 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-28 669A DATE: April 13, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected right knee tendonitis is remanded. Introduction The Veteran served honorably on active duty in the United States Army during the Peacetime and Gulf War Era, from April 1989 to April 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. When this matter came before the Board previously in September 2019, it was denied and the Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) entered into between the parties, the Court issued its September 2020 Order granting the JMR and remanding the matter for action consistent with the terms therein. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for service-connected right knee tendonitis is remanded. Pursuant to the JMR, the Board erred by relying upon an inadequate VA examination report dated June 2017; as well as, by failing to address the Veteran’s contention “that VA did not have her up-to-date private treatment records.” The JMR states remand is required “for a new examination that contains [range of motion (ROM)] measurements for active and passive [ROM] under weight-bearing and non-weight-bearing conditions.” According to the JMR, “if such testing cannot be performed, the examiner must ‘clearly explain why that is so.’” Further, the JMR indicates the VA examiner failed to clearly explain why passive ROM testing could not be performed. The JMR also states that, “remand is required … to obtain an adequate examination that addresses [the Veteran’s] functional loss due to flare-ups” and that, without “adequate rationale,” the VA examiner “failed to estimate [the Veteran’s] functional loss after repetitive use.” Moreover, the JMR states the Board failed to address the Veteran’s contentions that “VA did not have her up-to-date private treatment records” and that, if possible, VA must attempt to obtain them. According to the JMR, the Veteran’s representative noted “‘the most recent treatment records considered as evidence are now more than four years old.’” Finally, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, VA must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for VA to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. VA must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. Thus, VA must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Based upon the foregoing, the Board finds that remand is required for additional development consistent with the terms of the JMR. Accordingly, the matter is REMANDED for the following action: 1. Obtain all pertinent outstanding VA and private medical treatment and examination records and associate them with the claims file. If any requested records are not available or the search for any such records otherwise yields negative results, that fact must be clearly documented in the claims file. 2. Schedule the Veteran for an in-person VA orthopedic examination with a physician possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran’s service-connected right knee tendonitis for the entire period on appeal. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which she has first-hand knowledge, such as observable symptomology and functional limitations. All pertinent symptomology must be reported in detail. Based upon a review of all pertinent documents in the Veteran’s claims file, including medical treatment and examination records, lay statements, and the examination results, the examiner must provide a full description of the disability and report all signs, symptoms, and treatment necessary for evaluating the Veteran’s service-connected right knee tendonitis under the rating criteria as it existed both prior to February 7, 2021, and thereafter, and for the entire period on appeal. In so doing, the examiner must specifically provide findings including, but not limited to, the following: (a.) Any weakened movement, excess fatigability with use, incoordination, and painful motion. (b.) ROM in both active and passive motion, and on weight-bearing and non-weight-bearing, including in the opposite joint. In reporting the results of ROM testing, the examiner must identify any objective evidence of pain and the degree at which pain begins. (c.) The severity, frequency, and duration of any flare-ups, and the degree of additional ROM loss and functional loss due to flare-ups and after repetitive use, including over time. **If flare-ups are not reported at the time of examination, or if repetitive use testing, including over time, is not feasible, the examiner must estimate the additional ROM loss in degrees during earlier periods on appeal when flare-ups were reported, as well as, after repetitive use, including over time. In offering the above opinion(s), the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) the Veteran’s March 2016 statement regarding symptomology and functional limitations; and (b.) the Veteran’s June 2017 VA Form 9 regarding symptomology and functional limitations. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner (i.e., does not have the required knowledge or training). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.