Citation Nr: 21026733
Decision Date: 05/03/21	Archive Date: 05/03/21

DOCKET NO. 10-49 232
DATE: May 3, 2021

REMANDED

Entitlement to a higher rating for right knee degenerative arthritis is remanded.

Entitlement to a higher rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears based on instability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1988 to October 1998.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In March 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

In a March 2015 decision, the Board granted a 30 percent rating for right knee degenerative arthritis prior to July 2, 2009; granted a 20 percent rating for right knee degenerative arthritis from July 2, 2009 through September 8, 2009; denied    a rating in excess of 10 percent for right knee degenerative arthritis beginning November 1, 2009; granted a 10 percent rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears prior to September 9, 2009;     and denied a compensable rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears beginning November 1, 2009.  Thereafter, the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court).  

In a January 2017 Joint Motion for Partial Remand (Joint Motion), the parties moved the Court to vacate the Board's March 2015 decision, except insofar as it was favorable to the Veteran.  The Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion.  The claims were remanded by the Board in April 2017, January 2018, July 2019, and November 2020 for further development.  

1. The claim for a higher rating for right knee degenerative arthritis is remanded.

2. The claim for a higher rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears based on instability is remanded.

In the January 2017 Joint Motion, the parties agreed that the Board erred in relying on VA examinations which did not include range of motion testing in weight-bearing or an explanation as to why such testing could not be performed, as required by Correia v. McDonald, 28 Vet. App. 158, 170 (2016).  

The Board most recently remanded the claims in November 2020 in order to obtain a VA examination that complies with the terms of the January 2017 Joint Motion. Thereafter, the Veteran underwent another VA examination in March 2021. The examiner indicated that the Veteran had pain with weight-bearing; however, the examiner again failed to perform range of motion testing in weight-bearing or provide an explanation as to why such testing could not be performed. Although the Board sincerely regrets the delay, the Board cannot proceed with the adjudication   of the Veteran's appeal until there is substantial compliance with the terms of the January 2017 Joint Motion. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order).  

The matters are REMANDED for the following action:

1. Obtain range of motion testing of the right knee in weight-bearing.  If it is not possible to conduct range of motion testing of the right knee in weight-bearing, the examiner must explain why the testing could not be accomplished. 

2. The agency of original jurisdiction (AOJ) must   ensure that range of motion testing of the right knee    was conducted in weight-bearing or that the examiner explained why such testing could not be completed.   

 

K. A. BANFIELD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Banister, 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.