Citation Nr: 21022830 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 10-06 353 DATE: April 19, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for degenerative arthritis of thoracolumbar spine is remanded. Entitlement to an initial rating in excess of 10 percent for status post internal fixation of right knee tibial plateau fracture for the period from September 1, 2007 to November 3, 2020 is remanded. Entitlement to a rating in excess of 40 percent for status post internal fixation of right knee tibial plateau fracture for the period from November 4, 2020 is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1982 to August 2007. This appeal comes before the Board of Veterans’ Appeals (Board) from an April 2008 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, granted service connection for status post internal fixation of right knee tibial plateau fracture and degenerative arthritis of thoracolumbar spine, assigning disability ratings of 10 percent and 20 percent, respectively, with an effective date of September 1, 2007. In a December 2020 rating decision, the RO increased the Veteran’s right knee disability rating to 40 percent, effective November 4, 2020. These matters were previously before the Board in June 2015, September 2017, November 2018, and July 2020 and were remanded each time for further evidentiary development. The Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ) in April 2015. A copy of the hearing transcript has been reviewed and associated with the claims file. 1. Entitlement to an initial rating in excess of 20 percent for degenerative arthritis of thoracolumbar spine is remanded. 2. Entitlement to an initial rating in excess of 10 percent for status post internal fixation of right knee tibial plateau fracture for the period from September 1, 2007 to November 3, 2020 is remanded. 3. Entitlement to a rating in excess of 40 percent for status post internal fixation of right knee tibial plateau fracture for the period from November 4, 2020 is remanded. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion (ROM) measurements of the opposite undamaged joint. Simply noting whether the Veteran exhibited pain on weight-bearing and non-weight-bearing is insufficient under Correia; VA examiners are to record the ROM testing results for both active and passive motion, as well as both weight-bearing and non-weight-bearing. See 28 Vet. App. at 170. The November 2020 VA examinations do not comply with all of the Correia requirements and new examinations are therefore warranted. While the examination reports clearly indicate both active and passive ROM measurements, they only indicate whether the Veteran exhibited pain on weight-bearing and non-weight-bearing. The reports do not record his weight-bearing and non-weight-bearing ROM measurements, nor do they state at what degree pain was evidenced with weight-bearing and non-weight-bearing. The examination provided on remand should comply with the requirements of Correia to the fullest extent possible. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records, from August 2020 to the present. 2. After completion of #1, schedule the Veteran for VA examinations by an appropriate clinician or clinicians to determine the severity of his right knee and thoracolumbar spine disabilities. The claims file, including this remand, must be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history, and such review should be noted in the examination report. For both examinations, the examiner is to indicate how far back (i.e., one year, two years, etc.) each finding would apply. (A) The VA examination for the Veteran’s thoracolumbar spine disability must include complete range of motion testing, and the examiner must note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing, as well as weight-bearing and non-weight-bearing range of motion testing must be conducted, and the resulting ROMs, expressed in degrees, for each test conducted must be recorded. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement.  The extent of additional limitation should be expressed in degrees.    The examiner is advised that the Veteran has reported flare-ups of thoracolumbar spine pain throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss.  If so, he or she should estimate the degree of lost motion during such flare-ups.  The examiner is to attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given.  Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner.    The presence or absence of ankylosis in the thoracolumbar spine must be noted. If ankylosis is found, the examiner is to indicate whether the ankylosis is favorable or unfavorable, and whether it affects only the Veteran’s thoracolumbar spine, or the entire spine. (B) The VA examination for the Veteran’s knee disability must include complete range of motion testing, and the examiner must note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing, as well as weight-bearing and non-weight-bearing range of motion testing must be conducted, and the resulting ROMs, expressed in degrees, for each test conducted must be recorded. If possible, the ROM for the Veteran’s left knee should be tested and recorded. The examiner must also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement.  The extent of additional limitation should be expressed in degrees.    The examiner is advised that the Veteran has reported flare-ups of right knee pain throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss.  If so, he or she should estimate the degree of lost motion during such flare-ups.  The examiner is to attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given.  Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner.    The presence or absence of ankylosis in the right knee must be noted. The examiner is also directed to answer the following questions. For any affirmative answer, the examiner is asked to indicate as to how far back (i.e., one year, two years, etc.) such results would apply. 1. During the period prior to February 7, 2021, did the Veteran have recurrent subluxation and/or lateral instability of the right knee? If so, was such recurrent subluxation and/or lateral instability slight, moderate, or severe prior to February 7, 2021? 2. During the period prior to February 7, 2021, was there malunion of the Veteran’s right tibia and fibula? If so, was there a slight, moderate, or marked knee or ankle disability? 3. During the period prior to February 7, 2021, was there nonunion of the Veteran’s right tibia and fibula, with loose motion, requiring the use of a brace? 4. Since February 7, 2021, has there been any sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) of the right knee causing persistent instability? If so, does the instability require a prescription by a medical provider for an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation? 5. Since February 7, 2021, has the Veteran had any diagnosed condition involving the patellofemoral complex with recurrent instability? If so, does such instability require a prescription from a medical provider for a brace, cane, and/or walker? Has the Veteran had any surgery since February 7, 2021 for any condition involving the patellofemoral complex? The examiner must provide a comprehensive rationale for each opinion provided.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training.  As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pratt, Austin M. 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.