Citation Nr: 21023103 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 12-30 315 DATE: April 20, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for right knee limitation of flexion is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee limitation of flexion is remanded. Entitlement to an initial disability rating in excess of 10 percent, and an earlier effective date, for right knee instability is remanded. Entitlement to an initial disability rating in excess of 10 percent, and an earlier effective date, for left knee instability is remanded. REASONS FOR REMAND The Veteran, who is the Appellant in this case, had active service from August 1989 to September 1996. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a November 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. This case has a long procedural history that has been summarized in previous Board remands. The Veteran is in receipt of a 10 percent disability rating for right knee limitation of flexion, effective from December 17, 2010; a 10 percent disability rating for left knee limitation of flexion, effective from December 17, 2010; a 10 percent disability rating for right knee instability, effective from January 10, 2013; and a 10 percent disability rating for left knee instability, effective from December 15, 2020. The separate ratings for right and left knee instability were granted in June 2013 and February 2021 rating decisions, respectively, during the course of the appeal of the initial ratings assigned for the bilateral knee limitation of flexion. The issues of entitlement to higher initial ratings and earlier effective dates for right and left knee instability are part and parcel of the current appeal seeking higher initial ratings for right and left knee limitation of flexion. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); 38 C.F.R. § 3.103(a) (VA must “render a decision which grants every benefit that can be supported in law while protecting the interests of the Government”). Most recently, in June 2020, the Board remanded this case for further development to include affording the Veteran a VA knee examination that complied with the United States Court of Appeals for Veteran’s Claims’ (Court) decision in Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). The Board found that although the Veteran had attended a VA knee examination in January 2019, the examination report did not provide the information required by Correia. Specifically, in the June 2020 remand, the Board directed the VA examiner, in pertinent part, as follows: The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Range of motion findings for active and passive motion should be recorded separately, even if they are the same, and the point at which painful motion begins should be clearly stated. Review of the December 2020 VA knee examination report reveals that the examiner recorded initial range of motion measurements using a goniometer for each knee, but did not specify whether such measurements reflected active or passive motion, nor did the examiner separately record active and passive motion measurements. Further, the examiner stated that pain was noted on passive range of motion testing of both knees but did not specify the point at which pain began. Finally, the examiner stated that there was pain with non-weight-bearing testing of both knees, but did not indicate whether or not there was pain with weight bearing; the Board assumes that there was, but the examiner’s failure to explicitly state whether or not there was pain with weight-bearing renders the examination non-compliant with the Board’s remand directives. While the Board regrets the additional delay, another remand is necessary to afford the Veteran a new knee examination that complies with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). As noted in the Board’s June 2020 remand, while the Board would be within its right to address the Veteran’s claims of entitlement to earlier effective dates for the assignment of separate 10 percent ratings for right and left knee instability at this juncture, the Board declines to do so, as it would result in piecemeal adjudication of the Veteran’s claims, adding an additional element of confusion to an already convoluted matter. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (in the interest of judicial economy, piecemeal adjudication is to be discouraged). The RO is requested to obtain any additional VA treatment records from May 2020 to the present. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2) and (3); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any VA treatment records for the period from May 2020 to the present. 2. Then, afford the Veteran the opportunity to attend a VA examination to assess the current severity of his service-connected bilateral knee disabilities. The claims file, to include a copy of this remand, should be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. The examiner must test the Veteran’s active motion, passive motion, and identify whether or not there is pain with weight-bearing and without weight-bearing. Range of motion findings for active and passive motion should be recorded separately, even if they are the same, and the point at which painful motion begins should be clearly stated. A goniometer should be used for all range of motion testing. The examiner should also state whether the examination is taking place during a period of flare-up or following repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his knee symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should note that the VA CLINICIAN’S GUIDE requires the examiner to estimate the range of motion “per [the] Veteran.” See VA CLINICIAN’S GUIDE at Ch. 11. 3. Thereafter, readjudicate the claims on appeal. In assessing the proper effective dates and initial ratings for instability of the bilateral knees, consider the Veteran’s lay statements during the appellate period, as well as the Court’s holding in English v. Wilkie, 30 Vet. App. 347, 353 (2018). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.